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1985]

FEMINIST ANALYSIS OF A CASEBOOK

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I also claim my analysis of this casebook is feminist because of my oppositional stance toward gender. Some individuals who explore and analyze gender characteristics implicitly subscribe to that aspect of gendered thinking that privileges "male" traits over those gener- ally thought to be female.4 I maintain, however, that a gender-fo- cused analysis is feminist only when its analyst is consciously oppositional, when the analyst seeks to change the impact of gender categories either to improve the position of women 5 or to liberate both sexes from gender constraints.6 This oppositional aspect of feminism has important implications for my Essay. Because I be- lieve that the social and psychological differences between men and women are constructed and mutable, rather than biologically deter-

ARCHY AND THE CASE FOR SOCIALIST FEMINISM 173 (Z. Eisenstein ed. 1979); FEMINISM AND

MATERIAUSM: WOMEN AND MODES OF PRODUCION (A. Kuhn & A. Wolpe eds. 1978). Still others want to learn why the objectification of women's sexuality takes the particular, violent

form it takes in some kinds of pornography. See, e.g., A. DwoRKIN, WOMAN HATING (1974); Benjamin, The Bonds ofLove: RationalViolence andEroticDomination, in THE FUTURE OF DIFFER- ENCE 41-70 (H. Eisenstein & A.Jardine eds. 1985). Feminist literary theorists write about why women write and read differently than men do. See, e.g., J.FETFERLEY, THE RESISTING READER: A FEMINIST APPROACH TO AMERICAN FICTION (1978); K. RuTIVEN, FEMINIST LITERARY STUD- Ims: AN INTRODUCTION (1984). Feminist legal scholars, in part, have focused on the doctrinal and theoretical implications of treating women and men differently or similarly. See, e.g., Freedman, Sex Equality,Sex Differences, andthe Supreme Court, 92 YALE I.J.913 (1983); Olsen, The Family and the Market: A Study ofIdeology andLegal Reform, 96 HARv. L. REv. 1497 (1983); Olsen, Statutory Rape:A Feminist Critiqueof RightsAnalysis, 63 Tnx. L. REv. 387 (1984); Minow, Rights of One's Own (Book Review), 98 HAIv. L. REv. 1084, 1089-93 (reviewing E. GRIFFITH, IN HER OWN RIGHT: THE LIFE OF ELIZABETH CADY STANTON (1984)). See generally Bibliography of Feminist Legal Scholarship (Dec. 28, 1984) (unpublished manuscript on file with author). Others have used gender as a way to draw on an aspect of experience more available to wo- men than to men, such as a personal perspective on an issue or an outsider's unempowered perspective. See, e.g., Dalton, An Essay in the Deconstructionof ContractDoctrine,94 YA LJ.997 (1985).

My Essay is different from many of those I havejust described in that my primary focus is an examination of the gendered nature of a specific text. Rather than examining gender itself as a phenomenon, or using a gender-related trait as a perspective from which to see something else, I am trying to work within gender categories, hoping to expose the way our ideas about the world are infected with our ideas about gender. My Essay is connected to other feminist projects, however, in that I will include investigations of the personal or silenced aspects of contract doctrine, references to the origins and nature of gender differences, and discussion of the legal questions gender poses for contract, as part of my undertaking. I believe my methodology is similar both to the consciousness-raising process feminists often describe and to the uncovering of submerged discourses that feminist literary theorists claim as their meth- odology. See, &g., MacKinnon, Feminism, Marxism, Method, and the State: An Agendafor Theory, 7

SIGNS: J. OF WOMEN IN CULTURE AND SOCIETY 515 (1982); Kolodny, Dancing Through the Minefteld, in THE NEw FEMINIST CRITICISM 144, 159-63 (E. Showalter ed. 1985).

4.See, eg., S. FREUD, Some PsycologicalConsequences ofthe Anatomical Distinction Between the Sexes and Female Sexuality, in SEXUALTY AND THE PSYCHOLOGY Or LovE, 183-93, 194-211 (P. Reiff ed. 1963).

5.C. CHRIST, DIVING DEEP AND SURFACING 119-31 (1980); R. JOHNSON, SHE: UNDER- STANDING FEMININE PSYCHOLOGY (1976).

6.Joan Kelly's Essay discussing the shift in feminist theory away from dualistic analyses is useful in pursuing this point. See Kelly, The Doubledleion of FeministTheory, in WOMEN, HIS- TORY & THEORY 51-64 (1984); see also Leahy, "Until women themselves have told all they have to tell.. ." (1985) (unpublished paper on file with author).

1068 THE AMERiCAN UNIVERSrrY LAW REviEW [Vol. 34:1065

mined and immutable,7 I believe that the act of focusing on gender should be oppositional; it should change the effect of gender on a writer and her readers by unsettling those ideas in their

consciousnesses. 8

I have identified my Essay as a feminist analysis with some reser- vations. I recognize that the feminist label may seem uninviting to certain readers, and I do not want to lose those readers preemptorily. Moreover, I believe that the creativity, flexibility, and subordinated opposition that women's life experiences often de- mand and cultivate are important to the constitution of feminism.9 I do not want a "feminist" label for this project to jeopardize claims that differing analyses are also feminist.1P Nevertheless,*calling my analysis "feminist" seems desirable as a way to distinguish my pro- ject from the task of eliminating overt sexism in a book. I fear that "eliminating overt sexism" could seem limited to rooting out in- stances of pejorative, demeaning treatment of women in casebooks, and that would not accurately describe my Essay. While I believe eliminating that kind of sexism in books is an important and chal-

lenging enterprise, 1 II concede at the outset that Dawson, Harvey, and

7.See L. DAVIDSON & L. GORDON, THE SOCIOLOGY OF GENDER 1-33 (1979); S. DE

BEAUVOIR, THE SECOND SEX 1-47 (1953).

8.This claim is similar to that made by feminist literary critics regarding their work, see

J. FETERLEY, supra note 3, at vii-xxiv; J. RADWAY, READING THE ROMANCE 3-18 (1984), and to

Robert Gordon's description of Critical Legal Studies scholarship. See Gordon, CriticalLegal Histories,36 STAN. L. REV. 57, 117-24 (1984).

9.For examples of feminist writing that can inform this definition of feminism, seeJ.

MILLER, TOWARD A NEW PSYCHOLOGY OF WOMEN (1976); Minow, supra note 3; Leahy, supra

note 6.

10.Cf. Kolodny, DancingThrough the Minefle!4 in THE NEw FEMINIST CRITICISM 144, 159- 63 (E. Showalter ed. 1985). The embrace of diversity implied here is similar to Annette Ko- lodny's normative description of feminist literary criticism as pluralistic. Id I think Kolodny's use of "pluralistic" is an unfortunate choice of adjective, however. Pluralism as commonly

understood is not what I understand her to be saying, and it's not what I mean in suggesting that analyses which differ from mine may also be feminist. I think there is some "there" in feminism, not just anything goes.

11.For examples of this effort undertaken outside legal education, see Gappa, SEX AND

GENDER INTHE SOCIAL SCIENCES (1980) (produced under grant from Women's Educational

Equity Act Program, United States Department of Education); Ruth, Methodocracy, Misogyny and Bad Faith: The Response of Philosophy, in MEN'S STUDIES MODIFIED: THE IMPACT OF FEMI- NISM ON THE ACADEMIC DISCIPLINES (D. Spender ed. 1981). Efforts to eliminate overt sexism are now underway within legal education as well. Nancy S. Erickson at the Ohio State Univer- sity College of Law was awarded an Ohio State University Affirmative Action grant for the 1984-85 academic year to complete a project "Sex Bias in the Criminal Law Course: Bringing the Law School Curriculum into the 1980's." Erickson, with the assistance of Nadine Taub (Rutgers/Newark) as primary consultant, and others. examined whether gender-related issues have become an integral part of the traditional first-year criminal law course as it is taught throughout the country.

The study proceeded in three concurrent steps: a review of major casebooks currently be. ing used in the first-year criminal law courses; a survey of all law professors currently teaching the course; and a bibliography and compilation of supplementary materials recommended to compensate for inadequacies in traditional materials. The criminal law study was designed to serve as a model for a comprehensive study involving the entire law school curriculum. While

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FEMINIST ANALYSIS OF A CASEBOOK

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Henderson seems cleansed of any gratuitously negative comments about women. But I believe editors could conscientiously eliminate all instances of female degradation in their casebooks and still pro- duce books that would affect readers' views about gender and that would be subject to multiple interpretations because of readers' gender attitudes. A "feminist" casebook analysis will be useful, therefore, as long as the concept of gender has any meaningful content.' 2

Thus far I have discussed the significance that the power of gen- der has for my Essay. However, since my subject is the relationship between gender and a casebook, my analysis of Dawson, Harvey, and Henderson also depends on several assumptions about casebooks which I should state. I do not believe that a casebook is simply a neutral reflection of what students need to know to practice law, to pass the bar, to think like lawyers, or to become law teachers. I maintain that, even within the constraints of professional neces- sity,' 3 editors have a wide range of choice in their case selections, their comments, their notes, their problems, and their questions, and the choices they make are not inevitable. The choices could be different and, indeed, choices about content do differ among casebooks within particular subject areas. I also believe that a casebook is a powerful document. The editorial choices within a casebook determine how many readers think about the law of a doc- trinal area, about lawyering in that field, about clients, and about legal reasoning. (Indeed, since Dawson, Harvey, and Henderson may be one of only five books a first year student reads in a given year, its influence over students' views may extend beyond the "profes- sional" concerns just listed.) Because a casebook has such power, and because its contents are subject to editorial choice, analyzing the biases of a particular casebook could challenge the effect of the casebook on its readers.

Despite my position that casebook editors are responsible for cre-

this project focused on eliminating sex bias in the criminal law casebooks, it also overlapped with aspects of my project. Moreover, any effort to eliminate overt sexism will require femi- nist analysis as I have broadly defined it here, and I hope my work will further such pursuits.

12.I agree with Catharine MacKinnon's eloquent claim that "the male point of view [is] fundamental to the male power to create the world in its own image." MacKinnon, Feminism, Marxism, Method,and the State: TowardFeministJurisprudence,8 SIGNS: J. oF WOMEN IN CULTURE AND Soci ry 635, 640 (1983). As long as our ideas about gender permit us to divide our views dualistically between male and female viewpoints, gender will continue to profoundly influence the nature of our lives.

13.I do not think that "professional necessity" is any more determinate than I suggest the contents of a casebook need to be. I use the phrase here, however, simply to acknowledge that there are some (arguable) limits within which a casebook editor functions in selecting the contents ofa casebook which is to be used for legal education.

1070 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 34:1065

ating works of significant power over readers, I do not believe that casebooks are frozen artifacts. I believe, with Stanley Fish, that "lin- guistic and textual facts, rather than being the objects of interpreta- dons are its products."14 Readers cannot fully screen themselves out of their reading and interpretation, just as they are unable to ignore the social and institutional setting in which a casebook is read. Think, for example, of how differently one might interpret Dawson, Harvey, and Henderson by reading it along with Patrick Atiyah's Rise andFallof Freedom of Contract15 rather than with Legalines. Since I be- lieve readers have a significant role in creating the meaning of a casebook, I want at this point to introduce my impressions of a group of typical casebook readers. I hope that by drawing portraits of a variety of individuals who read casebooks I can convince my readers that singular interpretations of Dawson, Harvey, and Hender- son are unlikely. My portraits of casebook readers concentrate al- most entirely on the readers' attitudes toward gender, in order to broaden and deepen our shared views about the content of gender. By using these portraits later in the Essay I hope to convince you that I am not the only reader of Dawson, Harvey, andHenderson with a gendered perspective, and I also hope these portraits will remind you of your own ideas about gender.16

The readers I have created are fictional; indeed, they may not avoid seeming stereotyped. Nevertheless, I believe they resemble students and colleagues I have known in twelve years of law teach- ing, and, while you may not see yourself as any one reader, you may see parts of yourself in more than one. Because I will refer to these examples of readers later in the Essay, I am giving them taglines for names.

The Feminist

Whether this reader is male or female, he or she is a self-identified feminist. If this reader is female, she is proud to be a woman; if male, he is admiring of women's achievements. These readers are interested in the historical, social, and psychological discrimination against women in our society; they oppose such discrimination; and they are informed about the ways in which such mistreatment has

14.S. FISH, Is THERE A TEXT iN THIS CLAss?: THE AuTHORrry OF INTERPRETIVE COMMU-

NrrIES 9 (1980) (emphasis added).

15.P. AnYAH, RISE AND FALL OF FREEDOM OF CoNTRAcr (1979).

16.It may seem paradoxical to seek to further our understanding of the content of gen-

der when my stated objective is to "diminish the power that ideas about gender exercise over our lives." However, because I think that gender distinctions are nurtured and perpetuated by their continuing impact on our consciousnesses, I believe that we cannot diminish their power without first exposing them and discussing the effect they have on us.

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been resisted. They also believe that the construction of gender has locked many men into sex roles that uncomfortably restrict them. Gender is on this reader's mind; she notices how many women are in a room, how many speak, and who listens when they do. She has special knowledge about women and their concerns, the way some people know a lot about the Civil War, about jazz, or the history of baseball. This reader might chide me for making such comparisons, however, for The Feminist can be quite single-minded and some- what humorless about feminist issues. They mean a lot to her.

The Woman-Centered Reader

A modified version of The Feminist is the woman whose experi- ence as a wife and mother has altered her career. She is acutely conscious that the majority of male students and faculty members have not had to substantially modify their work lives for the sake of their spouses or their children. Having needed other women's help in her family work, where carpooling, childcare exchange, and nurs- ery school cooperatives require a high degree of cooperation, relia- bility and trust, she tends to see women students and faculty members as friends and allies. She may not identify herself as a feminist, in part because she fears that might alienate her from her family and her old friends, but because she continues to take care of other people as an additional, time-consuming occupation, she has learned to live a divided life, with some attention on her casebooks (and single-minded instructors), some on her family's demands and some attention reserved for her natural law school allies, who are often The Feminist Readers.

The Reader with a Chip on the Shoulder

The female version of this reader is angry at men, perhaps be- cause of some mistreatment she has suffered, or perhaps because of her empathy for other women who have suffered mistreatment on account of sex. Because anger is often repellant, one may attribute a paranoid personality style to this reader. She seems to be con- stantly looking for clues that women will be denied justice in law school, as they have been elsewhere. If this reader is a student, she is vigilantly examining her instructors or the casebooks they have chosen for any indication she can find of prejudice against women. As a faculty member she is likely to have her colleagues and her casebooks under steady surveillance for sexist offenses. This reader may not, however, make herself known to individuals whom she

1072 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 34:1065

considers unsympathetic. She can be very isolated in the law school setting.

The male version of this reader is angry at women. For many rea- sons he resents the women in law school, whether they are students or teachers; he sees them as threats to a system of male dominance that he supports. Faculty members of this type are clever about masking their anger, at least around self-described feminists, but students, who sometimes act as if faculty members can't see them (or perhaps don't care if they do), reveal themselves by snorting if they hear the name of Geraldine Ferraro-but not, say, Mario Cuomo, or by a tease of a hiss if too many classroom hypotheticals involve female judges, lawyers, or parties. This reader may be searching his classes or his casebooks for evidence that patriarchy lives, despite the aberrational presence of the women who surround him. Or, like the female version of this reader, he may be looking for clues to justify his anger.

The Innocent Gentleman

This casebook reader also sees law school women as a challenge to his view of a male dominated world, but he is more bewildered than angry about their presence. He may never have seen his father drink a glass of water his mother didn't pour, and he does not un- derstand how to treat women as colleagues and authority figures. Must he, or can he, compete with them? What about sexual relation- ships; how can he understand such people other than as sexual ob- jects? He may be searching his classes and his casebooks for evidence about the truth of a world view where women have more restricted roles than they have in the law school setting.

The Reader Who is Undressedfor Success

Whether these casebook readers are male or female, their primary characteristic regarding gender is insecurity about their ability to conform to a popular image of "lawyers," which they understand as masculine, not feminine. They fear that successful lawyers are ana- lytical, rather than emotional; adversarial, rather than cooperative; certain, not tentative; ambitious, not flexible. They do not identify with Paul Newman in "The Verdict," Professor Kingsfield in "The Paper Chase," of even the elegantly tough Katharine Hepburn in "Adam's Rib," and they have grave doubts that their (purportedly) masculine traits are sufficiently dominant to allow them to succeed in law school, as students or faculty members. Whether they read the casebook to find evidence to confirm their fears, or to dispel

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them, they are very sensitive about gender questions in their casebooks.

The Individualist

These readers are assertive, conscientious students and faculty members who have modelled themselves after men and women who have succeeded in the public world. Because they have seldom met an obstacle they have not been able to overcome, they are suspi- cious of claims that membership in a group can handicap a person, regardless of individual merit. Some of these readers conduct their lives quite self-consciously and high-mindedly according to the ten- ets of sex neutrality; others harbor traces or even wide stains of mis- ogyny. As men, they want to continue rising to the top or revolving on the fast track unimpeded by a group of women who seek to change the rules of the game. As women, they do not want con- sciousness-raising to spoil their victories. These readers try to be unconscious about the sex or the gender of people in the casebook or elsewhere.

The Civil Libertarian

Because of their general political stance as individuals who favor civil liberties and rights for the oppressed, these readers are likely to oppose invidious discrimination against women. Indeed, some of these readers may have been interested in feminism at some time, particularly during the late sixties and the early seventies. However, these readers are currently committed to other causes, such as op- position to racism, the elimination of hunger, and the antinuclear movement. Whether they genuinely believe that the oppression of women is less significant than it used to be, or whether they simply believe that other oppression deserves a superior claim to their at- tention, they prefer to avoid noticing gender in the casebook.

The UndeservingMale or Female Reader

Like the Reader who is Undressed for Success, these readers are also insecure about their abilities to succeed in law school, as stu- dents or faculty members. Because they have had good luck, well- placed connections, or ample money in their lives, they may fear that they do not deserve the positions and opportunities that have come their way. Unlike the Individualists, these readers are not in- sensitive to the effects group membership can have on an individual. Noticing gender in the casebook, however, unacceptably reminds both the Undeserving Male and Female about the backs they have

1074	THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 34:1065

walked over. The Undeserving Female, whose gender may have given her a boost she feels she was unworthy to receive, wishes to avoid hard questions, like affirmative action, which noticing gender might provoke.

Before turning to Dawson, Harvey, and Henderson, let me acknowl- edge again that casebook readers are much more complicated than I have presented them. Many people may not consciously notice gen- der at all, while many others may combine attitudes and personality traits which I have divided among the types I have drawn. Because the sketches are brief, and because they concentrate almost entirely on the readers' attitudes toward gender, these readers seem one di- mensional and more like caricatures than I want them to. But I be- lieve that any discussion of the choices the editors have made in creating this casebook requires a shared sense of variety of casebook readers; the character sketches are necessary, in my view, to under- score the variety of readers' attitudes concerning gender.

II.AN OVERVIEW OF THE CASEBOOK: DIs-COVERING THE GENDER OF CONTRACT CULTURE

By segregating social and psychological characteristics into two categories and linking those categories to one sex or the other, our ideas about gender constrain our beliefs about what kinds of work men and women can do, what their interests are, how they can act, and how they can feel. In addition, because traits commonly identi- fied as male are generally more highly valued than characteristics associated with women, our ideas about gender have a constituting effect on the continuing imbalance of power between men and wo- men. For example, because "men's" work is considered more im- portant than "women's" work, and "male" analytical skills are more valued than "female" intuition, women who choose a conventional woman's job and exhibit common feminine attributes are likely to have less respect (from women as well as men),17 less power, and less moneyI8 than women who are more masculine in manner and occupation. I believe that Dawson, Harvey, and Henderson strongly

17.J. Russ, MAGIC MOMMAS, TREMBLING SISTERS, PURITANS AND PERVERTS: FEMINIST ES-

SAYS (1985).

18.Department of Labor reports indicate that women earn only 597 as much as men. WOMEN'S BuREAu, OFFICE OF THE SECRETARY, U.S. DEP'T OF LABOR, THE EARNINGS GAP BE- TWEEN WOMEN AND MEN 6 (1979) (table 1). This discrepancy has been linked to the underval- uation of the kinds of work women do. See Blumrosen, Wage Discrimination,Job Segregation, and Title VH ofthe Civil Rights Act of 1964, 12 U. MicH.J. L. REFORM 397, 421 (1979); Note, Equal

Pay for Comparable Worth, 15 HARV. C.R.-C.LL. REv. 475, 478-79 (1980). Note, Equal Pay, Comparable Work, andJob Evaluation, 90 YALE LJ. 657, 663 (1981); see also Frug, SecuringJob Equality for Wome" Labor Market Hostility to Woring Mothers, 59 B.U.L. REv. 55 (1979).

1076 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 34:1065

monly characterized as feminine (such as sentimentality, earthiness, and compassion), I use women in this part primarily as a way of un- derstanding what is not womanly. My aim in this second part is to reveal the gendered aspects of the book which do not directly per- tain to women. 2' Although I am describing the gender-related as- pects of the casebook in both parts of this section, I try to demonstrate the ways in which different casebook readers would in- terpret the materials the editors have chosen. I want to show not only how the editors' choices affect the readers' views of contract doctrine and their views of themselves, but also the different ways they understand the editors' choices.

A.The Casebook Treatment of Women

1.Women as characters

There are substantially fewer women than men among the parties in Dawson, Harvey, and Henderson's cases. Only thirty-nine of the

183major cases in the casebook contain women.2 2 Men, therefore,

21.Although the first part focuses on women as characters and the second on male char- acteristics, the first part will implicate the casebook treatment ofmen as characters,just as the second will implicate female characteristics. In the conclusion I will discuss the implications of this approach for contesting gender in the casebook. See infra note 221 and accompanying text.

22.The major cases in the book that involve parties who are women are: Williams v. Walker-Thomas Furniture Co., 350 F.2d 445 (D.C. Cir. 1965), excerpted in J. DAWSON, supra note I, at 697; Rouse v. United States, 215 F.2d 872 (D.C. Cir. 1954), excerpted inJ. DAWSON, supra note 1, at 906; Kirksey v. Kirksey, 8 Ala. 131 (1845), excerpted inJ. DAWSON, supra note 1, at 192; Bleecherv. Conte, 29 Cal.3d 345, 626 P.2d 1051, 173 Cal. Rptr. 278 (1981), excerptedin J. DAwsoN, supra note I, at 660; Parker v. Twentieth Century-Fox Film Corp., 3 Cal.3d 176,

474P.2d 689, 89 Cal. Rptr. 737 (1970), excerpted inJ. DAWSON, supra note 1, at 46; Heyer v.

Flaig, 70 Cal.2d 223,449 P.2d 161,74 Cal. Rptr. 225 (1969), excerpted inJ. DAwsoN, supra note 1,at 896; Davis v.Jacoby, I Cal.2d 370, 34 P.2d 1026 (1934), excerptedinJ. DAwsoN, supra note 1, at 316; Fairfield Credit Corp. v. Donnelly, 158 Conn. 543, 264 A.2d 547 (1969), excerpted in J. DAWSON, supra note I, at 946; Allied Van Lines, Inc. v. Bratton, 351 So.2d 344 (Fla. 1977), excerpted inJ.DAwsoN, supranote 1, at 448; Skendzel v. Marshall, 261 Ind. 226,301 N.E.2d 641 (1973), excerpted inJ.DAwsoN, supra note 1, at 681; Brackenbury v. Hodgkin, 116 Me. 399, 102

A.106 (1917), excerpted inJ. DAWSON, supranote 1, at 331; Hoffman v. Chapman, 182 Md. 208,

34 A.2d 438 (1943), excerpted inJ.DAWSON, supra note 1, at 410; Fitzpatrick v. Michael, 177 Md. 248, 9 A.2d 69 (1939), excerped inJ. DAWSON, supranote 1, at 128; Reigart v. Fisher, 149 Md. 336, 131 A. 568 (1925), excerpted inJ. DAWSON, supra note 1, at 848; Taylor v. Barton-Child Co., 228 Mass. 126, 117 N.E. 43 (1917), excerpted inJ. DAwsoN, supranote 1, at 935; Fischer v. Union Trust Co., 138 Mich. 612, 101 N.W. 852 (1904), excerptedinJ. DAWSON, supra note 1, at 160; Skelly Oil Co. v. Ashmore, 365 S.W.2d 582 (Mo. 1963), excerpted inJ. DAwsoN, supra note 1, at 601; Gartrell v. Stafford, 12 Nev. 545, 11 N.W. 732 (1882), excerpted inJ.DAWsoN, supra note 1, at 118; Ellsworth Dobbs, Inc. v.Johnson, 50 N.J. 528, 236 A.2d 843 (1967), excerped in

J.DAwsoN, supra note 1, at 469; Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d

69 (1960), excerpted inJ. DAWSON, supra note 1, at 461; Timko v. Useful Homes Corp., 114 N.J.

Eq. 433, 168 A. 824 (1933), excerpted inJ. DAwsoN, supra note 1, at 123; Cook v. Lum, 55 NJ.L. 373, 26 A. 803 (1893), excerpted in J. DAWsoN, supra note 1, at 919; Weisz v. Parke-Bernet

Galleries, Inc., 67 Misc.2d 1077, 325 N.Y.S.2d 576 (N.Y. Cir. Ct. 1971), rev'd, 77 Misc.2d 80, 351 N.Y.S.2d 911 (N.Y. App. Term. 1974), excerpted inJ. DAWSON, supranote 1, at 453; Cohen v. Kranz, 12 N.Y.2d 242, 189 N.E.2d 473, 238 N.Y.S.2d 928 (1963), excerpted inJ. DAWSON,

supra note 1, at 787; Mitchill v. Lath, 247 N.Y. 377, 160 N.E. 646 (1928), excerptedinJ. DAWSON,

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vastly outnumber women as "characters" in the book. Indeed, men not only monopolize the majority of the cases in which women do not appear but they also appear in most of the cases involving wo- men.23 Because Dawson, Harvey, and Henderson allow male parties to outnumber female parties so significantly, readers who notice gender differences are likely to be sensitive not only to the marginal representation of women in the casebook, but also to any sex role stereotyping within the decisions. Moreover, the cumulative im- pression provided by similarities among the women parties could provoke readers somewhat disinclined to notice gender to observe the casebook's links between women and ideas about gender.

a.Women's work

The most obvious commonality among the women parties is the narrow range of life situations in which they appear. Women, in this casebook, have legal problems arising from the limited activities typ-

supra note 1, at 426; Allegheny College v. National Chautauqua County Bank, 246 N.Y. 369, 159 N.E. 173 (1927), excerpted inJ.DAWSON, supranote 1, at 194; Seaver v. Ransom, 224 N.Y. 233, 120 N.E. 639 (1918), excerpted inJ. DAWSON, supra note 1, at 863; Wood v. Lucy, Lady Duff-Gordon, 222 N.Y. 88, 118 N.E. 214 (1917), excerpted inJ.DAWSON, supra note 1, at 231; Hamer v. Sidway, 124 N.Y. 538, 27 N.E. 256 (1891), excerpted inJ. DAWSON, supra note 1, at 156; Hinson v.Jefferson, 287 N.C. 422, 215 S.E.2d 102 (1975), excerpted inJ.DAwsoN, supra

note 1, at 575; Funk v. Baird, 70 N.D. 396, 295 N.W. 87 (1940), excerpted inJ. DAWSON, supra note 1, at 916; Kabil Devs. Corp. v. Mignot, 279 Or. 151, 566 P.2d 505 (1977), excerpted inJ. DAWSON, supra note 1, at 269; East Providence Credit Union v. Geremia, 103 R.I. 597, 239 A.2d 725 (1968), excerpted inJ. DAWSON, supra note 1, at 203; Najarian v. Boyajian, 48 R.I. 213, 136 A. 767 (1927), excerpted inJ.DAwSoN, supranote 1, at 850; DeLeon v. Aldrete, 398 S.W.2d

160(rex. Civ. App. 1965), excerpted in J. DAWSON, supra note 1, at 114; Batsakis v. Demotsis,

226S.W.2d 673 (rex. Civ. App. 1949), excerpted inJ.DAWSON, supranote 1, at 165;Jackson v. Seymour, 193 Va. 735, 71 S.E.2d 181 (1952), excerpted in J. DAWSON, supra note 1, at 170; Hoffman v. Red Owl Stores, Inc., 26 Wis.2d 683, 133 N.W.2d 267 (1965), excerpted inJ.DAW- SON, supra note 1, at 355; Plante v.Jacobs, 10 Wis.2d 567, 103 N.W.2d 296 (1960), excerptedin

J.DAWSON, supra note 1, at 812.

23.Indeed, the figure of 39 women's cases is somewhat misleading because wbmen are coupled with their husbands in I1 of those cases and do not have a significant separate pres- ence as women. The 11 cases involving married couples are: Fairfield Credit Corp. v. Don- nelly, 158 Conn. 543, 264 A.2d 547 (1969), excerpted in J. DAWSON, supra note 1, at 946; Hoffman v. Chapman, 182 Md. 208,34 A.2d 438 (1943), excerptedinJ. DAWSON, supra note 1, at 410; Skelly Oil Co. v. Ashmore, 365 S.W.2d 582 (Mo. 1963), excerpted inJ. DAWSON, supra note

1, at 601; Ellsworth Dobbs, Inc. v.Johnson, 50 NJ. 528, 236 A.2d 843 (1967), excerpted in J. DAWSON, supra note 1, at 469; Henningsen v. Bloomfield Motors, Inc., 32 NJ. 358, 161 A.2d 69 (1960), excerpted inJ. DAWSON, supra note 1, at 461; Weisz v. Parke-Bernet Galleries, Inc., 67 Misc.2d 1077, 325 N.Y.S.2d 576 (1971), rev'd 77 Misc.2d 80, 351 N.Y.S.2d 911 (N.Y. App.

Term. 1974), excerptedinJ. DAWSON, supra note 1,at 453; Kabil Devs. Corp. v. Mignot, 279 Or. 151, 566 P.2d 505 (1977), excerpted inJ. DAWSON, supra note 1, at 269; East Providence Credit Union v. Geremia, 103 R.I. 597, 239 A.2d 725 (1968), excerpted inJ. DAWSON, supra note 1, at 203; DeLeon v. Aldrete, 398 S.W.2d 160 (rex. Civ. App. 1965), excerpted inJ. DAWSON, supra note 1, at 114; Hoffman v. Red Owl Stores, Inc., 26 Wis.2d 683, 133 N.W.2d 267 (1965),

excerpted inJ. DAWSON, supra note 1, at 355; Plante v.Jacobs, 10 Wis.2d 567, 103 N.W.2d 296 (1960), excerpted inJ. DAWSON, supranote 1, at 812. In addition, the woman involved in Hamer

v.Sidway is an assignee (and wife) of the nephew whose uncle promised him money for re- fraining from various activities; she is scarcely noticeable in the decision. Hamer v. Sidway, 124 N.Y. 538, 538, 27 N.E. 256, 256 (1891), excerpted inJ.DAwsoN, supra note 1, at 156.

1078 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 34:1065

ically associated with their sex, and the jobs they have are the most

stereotypical forms of women's work. Their disputes involve con-

tract problems arising from some experience in a family relation- ship-as wife, 24 as mother-in-law, 25 sister-in-law, 26 or niece.27

Outside family relationships, one can see a woman in this casebook having contract issues that arise only from such limited stereotypi- cally female roles as home purchaser,28 home seller,29 nurse,30 fash- ion designer,31 charitable benefactress,3 2 entertainer,-3 mental incompetent,3 4 and welfare recipient.3 5 Men in Dawson, Harvey, and Henderson also have legal problems arising from family relation- ships,5 6 as well as from positions such as home purchaser, 7 home seller,38 mental incompetent,3 9 and nurse.40 But men's legal

problems in Dawson, Harvey, and Henderson also stem from much

24.E.g., Skelly Oil Co. v. Ashmore, 365 S.W.2d 582 (Mo. 1963), excerpted inJ. DAWSON, supra note 1, at 601; Henningsen v. Bloomfield Motors, Inc., 32 NJ. 358, 161 A.2d 69 (1960), excerpted inJ. DAWSON, supranote 1, at 461; Weisz v. Parke-Bernet Galleries, Inc., 67 Misc.2d 1077, 325 N.Y.S.2d 576 (N.Y. Civ. Ct. 1971), rev'd, 77 Misc.2d 80, 351 N.Y.S.2d 911 (N.Y. App. Term. 1974), excerptedinJ. DAwsoN, supranote 1, at 453; East Providence Credit Union v. Geremia, 103 R.I. 597, 239 A.2d 725 (1968), excerpted inJ. DAWsoN, supra note 1, at 203; De Leon v. Aldrete, 398 S.W.2d 160 (rex. Civ. App. 1965), excerpted inJ.DAWSON, supra note 1, at 114; Hoffman v. Red Owl Stores, Inc., 26 Wis.2d 683, 133 N.W.2d 267 (1965), excerpted itJ. DAwsoN, supra note 1, at 355.

25.Brackenbury v. Hodgkin, 116 Me. 399, 102 A. 106 (1917), excerpted in J. DAWSON, supra note 1, at 331.

26.Kirksey v. Kirksey, 8 Ala. 131 (1845), excerpted inJ. DAWSON, supra note 1, at 192.

27.Davis v.Jacoby, 1 Cal. 2d 370, 34 P.2d 1026 (1934), excerpted inJ. DAwsoN, supra note 1, at 316.

28.Hinson v. Jefferson, 287 N.C. 422, 215 S.E.2d 102 (1975), excerpted in J. DAwsoN, supra note I, at 575.

29.Gartrell v. Stafford, 12 Nev. 545, 11 N.W. 732 (1882), excerpted in J. DAwsoN, supra note 1, at 118.

30.Fitzpatrick v. Michael, 177 Md. 248, 9 A.2d 639 (1939), excerpted inJ. DAwsoN, supra note 1, at 128.

31.Wood v. Lucy, Lady Duff-Gordon, 222 N.Y. 88, 118 N.E. 214 (1917), excerpted inj. DAWSON, supra note 1, at 231.

32.Allegheny College v. National Chautauqua County Bank, 246 N.Y. 369, 159 N.E. 173 (1927), excerpted inJ. DAwsON, supra note 1, at 194.

33.Parker v. Twentieth Century-Fox Film Corp., 3 Cal.3d 176, 474 P.2d 689, 89 Cal. Rptr. 737 (1970), excerpted inJ. DAwsoN, supranote 1, at 46.

34.Fischer v. Union Trust Co., 138 Mich. 612, 101 N.W. 852 (1904), excerpted inJ. DAW- soN, supra note 1, at 160.

35.Williams v. Walker-Thomas Furniture Co., 350 F.2d 445 (D.C. Cir. 1965), excerptedin J. DAwsON, supra note 1, at 696.

36.See, e.g., Kirksey v. Kirksey, 8 Ala. 131 (1845) (brother-in-law), excerpted inJ. DAwsON, supra note 1, at 192; Brackenbury v. Hodgkin, 116 Me. 399, 102 A. 106 (1917) (son and son- in-law), excerpted inJ. DAwsoN, supra note 1, at 331; Hamer v. Sidway, 124 N.Y. 538, 27 N.E. 256 (1891) (nephew and uncle), excerpted inJ. DAwsON, supra note 1, at 156.

37.Hoffman v. Chapman, 182 Md. 208,34 A.2d 438 (1943), excerpted inJ. DAwsoN, supra note 1, at 410.

38.Id.

39.Faber v. Sweet Style Manufacturing Corp., 40 Misc. 2d 212, 242 N.Y.S.2d 763 (N.Y. Sup. Ct. 1963), excerpted inJ. DAwsON, supra note 1, at 492.

40.Bright v. Ganas, 171 Md. 493, 189 A. 427 (1936) ("personal attendant and compan- ion"), excerpted in J. DAwsoN, Supra note 1, at 111.

1985]FEMINIST ANALYSIS OF A CASEBOOK1079

broader, more diverse situations, such as their work as a doctor,4 1 contractor, 42 farmer,43 miller,44 coal dealer,45 town commissioner,4 6

lumberman,47 deputy sheriff,48 sportscaster,49 prize fighter,50 engi- neer,51 manager,52-there's even a man in one case who is a lawbook writer with a drinking problem.5 3

One might object to the critical implications of the preceding ob- servations on the grounds that "life is, or has been, like that for

women; the cases which have been selected accurately reflect differ- ences between men and women in the real world." One might think that Dawson, Harvey, and Henderson's inclusion of a few cases in which women are successful entrepreneurs, such as the

fashion designer and the entertainer cases, 54 fully vindicates their

choices of cases involving women. The entrepreneurial cases not

only complement the cases in which women are engaged in stere- otypical activities but the diminutive number of such cases propor- tionately reflects the actual participation of women in the predominantly male world of business. Indeed, one might claim, including more cases in which women do untraditional things would deceive students about the actual status of women outside the

casebook milieu.

This argument strikes me as an ironic diversion. In fact, my im- pression is that casebook editors generally fail and seldom make much effort to select cases and materials on the basis of how accu-

41.Hawkins v. McGee, 84 N.H. 114, 146 A. 641 (1929), excerptedinj. DAwsON, supra note

1, at 1.

42.Drennan v. Star Paving Co., 51 Cal. 2d 409, 333 P.2d 757 (1958), excerpted inJ. DAw- SON, supra note 1, at 346.

43.Boone v. Coe, 153 Ky. 233, 154 S.W. 900 (1913), excerpted inJ. DAWSON, supra note 1,

at 92.

44.Hadley v. Baxendale, 9 Exch. 341 (Ex. 1854), excerpted inJ. DAwsoN, supra note 1, at

67.

45.Illinois Central Railroad Co. v. Crail, 281 U.S. 57 (1930), excerpted inJ. DAWsON, supra note 1, at 59.

46.Rockingham County v. Luten Bridge Co., 35 F.2d 301 (4th Cir. 1929), excerpted in J. DAwsoN, supra note 1, at 41.

47.Tanner v. Merrill, 108 Mich. 58, 65 N.W. 664 (1895), excerpted in J. DAwsON, supra note 1, at 541.

48.Denney v. Reppert, 432 S.W.2d 647 (Ky. 1968), excerpted inJ. DAwsON, supra note 1,

at 558.

49.American Broadcasting Companies, Inc. v. Wolf, 52 N.Y.2d 394, 420 N.E.2d 363, 438 N.Y.S.2d 482 (1981), excerpted inJ. DAwSON, supra note 1, at 667.

50.Chicago Coliseum Club v. Dempsey, 265 111. App. 542 (1932), excerpted inJ. DAWSON, supra note 1, at 81.

51.Southwest Engineering Co. v. Martin Tractor Co., 205 Kan. 684,473 P.2d 18 (1970), excerpted inJ. DAwsoN, supra note 1, at 290.

52.Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471,427 A.2d 385 (1980), excerpted in J. DAwsoN, supra note 1, at 254.

53.Clark v. West, 193 N.Y. 349, 86 N.E. 1 (1908), excerpted inJ. DAwsON, supra note 1, at

738.

54.See supra notes 31, 33.

1080 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 34:1065

rately they depict the "real world." 55 Moreover, the issue is not, I think, whether Dawson, Harvey, and Henderson could defend the cases they have chosen. Perhaps they could.5 6 What is important to me is the effect that their choices have on readers' views regarding gender. Read together, the cases in this book confirm, rather than challenge, the generalization that women and men mostly do differ- ent things, and that women's opportunities are drastically more lim- ited than men's. Most women who read the casebook do so to prepare for a career that historically has been predominantly male, and they may be concerned about the effect gender will have on their legal careers. Because almost all the women in the Dawson, Harvey, and Henderson cases do traditional "women's work," the casebook is likely to reinforce readers' fears (or fantasies) that, be- cause gender has been a factor linked to career choice and success in the past, it may inhibit their options in the future.

In addition to perpetuating readers' views about occupational dis- tinctions between women and men, cases in which women do tradi- tional women's work can pose pedagogical problems for casebook readers. Although women's work has not been highly regarded or fairly compensated historically, 57 relying on these views regarding

women's work in a decision may inadequately inform readers how to use the case in other situations. Fitzpatrickv. Michael58 is an example of a case in Dawson, Harvey, andHendersonin which a court's failure to appreciate women's work obscures the reasoning of the opinion.

Fitzpatrickinvolves the claim of a practical nurse for specific per- formance of her employer's agreement to employ her until he died and to leave her a substantial interest in his estate. In exchange, she was to remain with him until he died and provide such services as giving him company, managing his house, driving his car, and nurs- ing him when he was sick. The court declined to grant relief specifi- cally enforcing the contract or negatively preventing Mr. Michael from hiring anyone else, in part because the court was unconvinced

55.There are, of course, exceptions to this generalization. See, e.g., C.KNAPP, PROBLEMS

IN CoNTRACr LAw: CASES AND MATERIALS xxi (1976) ("no study of law is adequate if it loses sight of the fact that law operates first and lastjor,upon, and throughindividual human beings).

I.MAcNEn, CASES AND MATERIALS ON CONTRACTS, EXCHANGE TRANSACTIONS AND RELATION-

SHIPS xx (2d ed. 1978) ("The book contains a considerable amount of text, both original and

borrowed, devoted to putting the legal materials into the economic, social, financial and com- mercial contexts in which they occur.").

56.One might argue, however, that a certain lack of realism should be encouraged in a casebook in order to obtain the beneficial effect on readers of an idealized image of how editors think the world should be for women and men.

57.See supra notes 17-18.

58.177 Md. 248, 9 A.2d 639 (1939), excerpted inJ. DAwsoN, supranote 1, at 128.

1084 THE AMERICAN UNIVERSITr LAW REVIEW [Vol. 34:1065

icance than if she were one of many businesswomen, some good, some bad, some in between. Her unique position in the casebook casts her character into prominence, particularly for those readers who are conscious of gender, and from several viewpoints Lady Duff-Gordon's character is disappointing.

Readers who have observed the phenomenal jeans-to-shampoo expansion of designer designated products must wonder how a wo- man in the early twentieth century could have earned money from dress manufacturers for "a certificate of her approval." The caption under her photograph, reproduced in the casebook from Good

Housekeeping Magazine, intriguingly states that Lady Duff-Gordon "employ[ed] psychology in designing clothes for women,"65 but

Cardozo and the editors do not describe whatever talent, energy, or

imagination this woman may have had.6 6 Moreover, the decision's

treatment of her legal defense does not redeem the greedy fickle- ness that her breach of contract suggests. Instead, her claim that

the contract lacked mutuality of assent seems like a technical at- tempt to dodge responsibility in Cardozo's skillful exposition of the reasons for his decision against her. Thus, readers who are inclined to look to Lady Duff-Gordon as a role model are likely to observe that as a successful woman she seems undeserving and unethical. This is not a promising message for those readers who seek to aban- don conventional women's roles, although it will be reassuring to the Gentleman Reader and the Reader with a Chip on his Shoulder who hope women will be inhibited in their efforts to break away from gender restrictions.

Other readers, who could be among The Feminist Readers or the female Readers with Chips on their Shoulders, might be offended that in one of the rare instances in this casebook in which a woman has a nondependent, untraditional career her work involves com- mercializing the personal appearance of women. These readers be- lieve the fashion industry exploits and degrades women, and they may feel belittled, angered, or disappointed that a woman with Lady

65.J. DAWSON, supra note 1, at 232.

66.In addition, Cardozo's wording might permit the female Reader with a Chip on her Shoulder to believe, in her paranoid mode, that the judge was skeptical about the reasons for Lady Duff-Gordon's success. His opinion states that she "styles herself 'a creator of fash- ions."' Wood v. Lucy, Lady Duff-Gordon, 222 N.Y. 88,90, 118 N.E. 214,214 (1917), excerpted in J. DAWSON, supra note 1, at 231, 231. Was she really a designer, such phrasing hints. Although in a later sentence Cardozo states that Lady Duff-Gordon did, in fact, design things--"fabrics, parasols and what not"-this creativity could seem undercut not only by tie

judge's "what not" but also by the hint of contempt he displays for the public, which ascribed "new value... [to products she designed] when issued in her name." Id at 90, 118 N.E. at

214 (emphasis added), excerpted in J. DAwsoN, supra note 1, at 231, 231.

1985]

FEMINIST ANALYSIS OF A CASEBOOK

1085

Duff-Gordon's prominence in the casebook is engaged in work they cannot respect.

Jackson v. Seymour,6 7 a case involving a woman's contract with her

brother for the sale of land, illustrates the casebook characterization of women who, unlike Lady Duff-Gordon, do not have successful careers outside the home. 68 I find Jackson significant not only be- cause the imagery of the case conveys a restrictive message to read- ers about what women are like, but also because the imagery is critical to the readers' understanding of the law of the case. More- over, like Lady Duff-Gordon, Mrs. Jackson's image is particularly meaningful because her case is rare; her case is the only case in Daw- son, Harvey, andHenderson'sunit on consideration in which a contract with inadequate consideration is set aside.

InJackson, LucyJackson, having sued her brother because he paid her considerably less for her land than it in fact was worth,69 man- ages to have the transaction set aside because of the parties' "confi- dential relationship." "The parties were brother and sister," the court explains. "He was a successful business man and she a widow in need of money." 70 Because the court inJackson does not elaborate its discussion of the parties' confidential relationship, and because it is unlikely that the decision rests solely on the biological relation- ship between the parties, the reader who seeks to understand the resolution of the case needs to develop the relationship between Mrs. Jackson and her brother more fully than the court has done.

Connecting the language of the case with typical, gendered ideas about what women and men were generally like in the 1950s, and before, a reader might construe Mrs.Jackson's confidential relation- ship with her brother in the following manner. Most women need to depend on one man or another in order to get along, and the

67.193 Va. 735, 71 S.E.2d 181 (1952), excerpted inJ. DAWSON, supra note 1, at 170.

68.Other cases in the book involving women who do not work outside the home also characterize the women, as this case does, as victims. See, e.g., Williams v. Walker-Thomas

Furniture Co., 350 F.2d 445 (D.C. Cir. 1965), excerpted in J. DAwsoN, supra note 1, at 697;

Brackenbury v. Hodgkin, 116 Me. 399, 102 A. 106 (1917), excerpted inJ. DAWSON, supranote 1, at 410. It is not clear whether the victimized women in other cases worked outside the home. See, eg., Kirksey v. Kirksey, 8 Ala. 131 (1845), ecerpted in J. DAwsoN, supra note 1, at 192; Reigart v. Fisher, 149 Md. 336, 131 A. 568 (1925), excerpted inJ. DAwSON, supra note 1, at 848; Batsakis v. Demotsis, 226 S.W.2d 673 (Tex. Civ. App. 1949), excerpted inJ. DAwsoN, supra note 1, at 165. The victimized stereotype is not the only unflattering stereotype readers can find in this casebook, however. For the cases in which women are characterized exclusively in terms of their dependency on their husbands, see supra note 23.

69.193 Va. 69 at 736,71 S.E.2d at 182, excerpted inJ. DAwsoN, supra note 1, at 170, 172. At the time of the purchase, neither he nor Mrs.Jackson knew that there was valuable timber on the land. Seymour cut and sold the timber, however, realizing a substantial amount of money which he did not share with his sister. Id.

70.Id. at 736, 71 S.E.2d at 182-183, excerpted inj. DAwsON, SUpra note 1, at 170, 172, 173.

1086 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 34:1065

court's description of Mrs. Jackson as a "widow," along with indica- tions of her poverty, and in contrast to her brother's economic suc- cess, suggest that Mrs.Jackson was shrouded with the entailments of emotional bereavement, vulnerability, and economic dependency. All of these characteristics, if they accurately described her situation, could have cast her into a relationship of dependence, trust, and confidence with her brother, in which she was weak and needy and he was strong and providing. This interpretation of Mrs. Jackson as victim simplifies the doctrinal issue in the case: a court will more closely scrutinize the terms of a contract on the grounds that it is based on a confidential relationship when one of the parties can be designated a weakling.

In contrast, if one shuns or does not recognize the stereotypically gendered idea that poor widows have usually been victims, the doc- trinal issue in the case is harder to resolve. Suppose, for example, that Mrs. Jackson was an emotionally vigorous woman whose wid- owhood was of so many years standing that she had long overcome the vulnerability she experienced when her husband died: or sup- pose that she was never so emotionally dependent on her husband that his death could affect her relationship with her brother. If neither party inJackson is obviously a weakling, the standards the court used to intervene in the parties' contract are harder to under- stand. We can conceive of a confidential relationship based on deep intimacy and shifting dependencies, particularly between a brother and sister. We can imagine a relationship in which Mrs.Jackson sus- tained her brother through the trials and tribulations of his business affairs while he offered her economic assistance and emotional sup- port when she needed help. However, overturning a contract based on this sort of confidential relationship would require more blatant judicial judgment calls than the objective theory of contract inter- pretation usually contemplates. 71 It is not surprising, therefore, that the court in Jackson appears to depend on our not thinking of Mrs. Jackson as a vigorous widow and vigilant sister. Rather, the court and the casebook editors (through their silence) count on our com- plicity in the more typically gendered view of the widow as victim.

I do not mean to suggest that emotional dependency, poverty, or bereaved feelings are unnatural or odious; indeed I believe a court should intervene to protect men and women when their vulnerabli- ties prevent them from making contract judgments in their best in-

71.For articles asserting an objective rather than subjective approach to interpreting the doctrine of mutual assent, see Costigan, Implied-In-FactContractsandMutualAssent, 33 HARV. L. Rzv. 376, 398-400 (1920); Williston, MutualAssent in the Formationof Contracts, 14 ILL. L. REv.

525, 529-35 (1919).

1985]

FEMINIST ANALYSIS OF A CASEBOOK

1087

terests.7 2 My point about theJackson case is that the brevity of the court's reasoning and the words that the court uses to describe the parties encourage readers to think of Mrs. Jackson in the gender stereotype of the pitiful widow. However innocently, the opinion reinforces a restrictive view that men are strong and women are weak, and it uses that limiting idea as an analytical shortcut to avoid a challenging doctrinal problem.

Readers may wonder, reading this case, whether men who are weak can also obtain this kind of protection, or whether women who are strong cannot count on assistance of this sort. Indeed, readers could easily conclude from reading this case, along with Lady Duff- Gordon's, that women who remain in conventional sex roles are re- warded, while those who break away are not. Moreover, because the decision in Jackson implicitly relies on a restrictive way of thinking about what women are like, it particularly discourages readers from broadening their views about the possible ways men and women can act and feel. Instead,Jackson teaches readers that gendered thinking will contribute to their success as lawyers.

Ihope that the Lady Duff-Gordon andJackson discussions suggest how women are stereotypically and unflatteringly depicted in the cases Dawson, Harvey, and Henderson have selected for their casebook. 73 I do not mean to imply here that men should monopo- lize the villainous roles in a casebook. However, by disproportion- ately limiting the number of cases involving women in their casebook, and by selecting cases in which women are given stere- otypically "feminine" personality traits, Dawson, Harvey, and Hen- derson offer readers a casebook that furthers gendered ideas that women are not as significant as men and that women are limited to "female" personalities.

c.Women's silence

In addition to choosing cases in which women have limited occu- pations and constricted characterizations, Dawson, Harvey, and Henderson foster confining ideas about women and men by their silence about matters that are important to women. By omitting ma-

72.Cf Kennedy, Distributiveand PaternalistMotives in Contract and Tort Law, with Special Reference to Compulsory Terms and UnequalBargainingPower, 41 MD. L. REv. 563, 624-31 (1982).

73.While this is my general impression of.the characterization of women in this casebook, there are cases in the book which do not conform to the generalization stated here. See, e.g., Bleecherv. Conte, 29 Cal. d 345, 626 P.2d 1051, 173 Cal. Rptr. 278 (1981), excerpted inJ.DAwsoN, supranote 1, at 660, in which Judge Rose Bird describes the defendant as "an experienced businesswoman involved in real estate transactions." Id at 345, 626 P.2d at 1052, 173 Cal. Rptr. at 278, excerpted in J. DAwsoN, supra note 1, at 660, 660. Although the defendant is unsuccessful in her legal claims, she has some dignity in judge Bird's treatment.

1088 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 34:1065

terial which is traditionally more closely linked to women and their experiences than to men, the editors perpetuate that aspect of gendered thinking which privileges "male" concerns. I will briefly discuss one case which illustrates two forms of editorial silence re- garding "women's" interests.

Crenshaw v. Williams,74 the fourth case in the casebook, is an exam- ple of a case in which both the opinion writer and the editors omit historical information, relevant to the case, that is of special signifi- cance to women. Crenshaw would be the first major case in the casebook in which a woman is a party, if the case had not been de- cided in Kentucky in 1921, before the 1942 amendments to that state's Married Women's Property Act.75 Although the case in- volved a contract for the sale of land that Mrs. Williams inherited from her father, her husband-rather than she-was the party in the case, because she was not allowed to convey her land without her husband's consent at the time of the events giving rise to the lawsuit. 76

Nothing in the casebook explains the problem of incapacity that state law imposed on Mrs. Williams, and other women, at the time of the lawsuit. This silence about the impact of common law re- straints on married women has two effects. First, it leaves Mrs. Wil- liams, who might have been the first principal female "character" in the casebook, standing helplessly in the wings of her own lawsuit, completely dependent on and subordinate to her husband. This stereotypical image of a woman may misrepresent Mrs. Williams's actual relationship with her husband, and it definitely imparts a first impression about women parties for readers that encourages restric- tive rather than expansive notions of how women can be.77

74.191 Ky. 559, 231 S.W. 45 (1921), excerpted inJ. DAwsON, supra note 1, at 25.

75.KY. REV. STAT. § 404.030 (1972).

76.Ky. REv. STAT. § 404.020(1) (1972) (repealed by implication by the 1942 amendment to § 404.030(1)) (permitting married woman to sell land without husband's consent). See

Schaengold v. Behen, 306 Ky. 544, 545-46, 208 S.W.2d 726, 729-30 (1948) (stating that Act of 1942 allows married woman to convey land freely). See also Levy, Vestiges ofSexisr in Ohio and Kenfuchy Property Law: A Case of De Facto Discrimination, 1 N.Ky.ST.L.F. 193, 214-18 (1973) (discussing impact of 1942 amendments on § 404.020).

77.Adding this historical material to the Crenshaw presentation might counter the sex role stereotyping effect on readers of later cases in the book, such as Reigart v. Fisher, 149

Md. 336, 131 A. 568 (Ap. Md. 1925), eerpted inJ.DAwsoN, supra note 1, at 848, in which a husband not only formally brought suit with his wife, in a dispute regarding the sale of her land, but also "acted as spokesman" for her. Since Maryland's provisions regarding the ca-

pacity of married women were not as restrictive as Kentucky's at the time of the decision in Reigart, readers cannot blame Gulielma Fisher's subordinated conduct on a legal anachro- nism. See Vogel v. Turnet, 110 Md. 192, 193-94, 72 A. 661,662-63 (1909) (interpreting Mary- land Married Women's Property Act to give wives same control as husbands over their own property); MD. ANN. CODE § 4-203 (1984) (Maryland provision regarding married woman's control over her property).

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The editors' failure to mention the status of Kentucky's Married Woman's Property Act at the time of the decision in Crenshaw is also significant because readers who are familiar with women's history are likely to notice this omission. Because the casebook contains notes about other historical events long overridden by change, 78 these readers may question the editors' avoidance of an appropriate and obvious opportunity to mention a major historical issue affect- ing women in the field of contract law. Female readers who are aware of past restrictions on married women may be angry at the editors for failing to discuss the problem of married women's legally restricted capacity. Or they may feel belittled by the casebook's si- lence on this subject-if women's history is unimportant, how im- portant can we ourselves be? Do we have significance only insofar as we are like men, and take men's history for our own? For readers who are unaware of the historical disabilities women endured under the common law, the casebook's silence permits them to remain ig- norant and, perhaps, insensitive to the continuing implications of these problems. The editors' silence on this issue nourishes the In- dividualist and the Civil Libertarian Readers' opinions that women's issues are unrelated to legal concerns.

Crenshaw also symbolically illustrates the silence that the casebook generally evidences regarding legal problems of current significance to women by suggesting one of the "women's" subjects which the casebook omits. 7 9 The lawsuit in Crenshaw arose when the Wil- liamses could not convey dear title to Mrs. Williams' property-a disability which occurred because "[t]hough Mrs. Williams had reached an age at which in the ordinary course of nature she would bear no children, the Kentucky Court of Appeals had earlier held that the possibility remained of her having another child, who, under the will of Mrs. Williams' father, would inherit the property after her death."8 0 Thus, a woman's sexuality and reproduction, a subject of enormous historical, current, theoretical, and practical in-

terest to women, lies at the heart of the contract problem in

8 1

Crenshaw.

78.See, eg., J.DAwsON, supra note 1, at 6-8 (discussing controls over jury verdicts); id. at

37.41(discussing history ofequity).

79.I recognize that my claim that Dawson, Harvey, and Henderson have not included

contracts cases in their book which would be particularly interesting to women might seem difficult to substantiate to some ofmy readers. Not only must I ask you to look with me in the casebook for what's not there, but more problematically the claim assumes the questionable proposition that women have spedal interests, that are different from men's, and that they have utilized the legal system, including contract doctrine, to pursue them.

80.J.DAwsoN, supra note 1,at 25 (editor's note).

81.While reproductive functions and sexuality are also important to men, many femi- nists assert, and I agree, that the lack ofcontrol women have had over these matters isa major

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Although the line I have quoted from the Crenshaw decision is the only material in the casebook on the subject of reproduction and sexuality, contractual arrangements have been utilized by women and men availing themselves of recent developments in reproduc- tive technology, and cases involving these issues could be utilized in a contracts course. Thus, for example, a woman who seeks to be- come pregnant through artificial insemination by a donor other than her husband is required in many states to obtain her husband's writ- ten consent if she wants him to be legally responsible for the sup- port of the child she conceives;8 2 sperm donors in some states may use contracts to accept or relinquish their rights and responsibilities in children who are conceived with their sperm;83 and men who wish to sire and father children in marriages in which their wives are in- fertile have attempted to use contracts as a way to structure arrange- ments with other women to bear children for them. 8 4

The disputes involving reproductive technology generally arise in the context of support or paternity cases, and yet they raise very traditional, basic contract issues, such as problems of consideration, assent, and the interplay between private ordering and social con- trol.85 Moreover, these disputes can only be understood and suc-

cause of their historical oppression. See, e.g., S. FRIEsroNE, THE DiALeac OF SEx 1-14 (1970); MacKinnon, supra note 3.

82.Typically statutes provide that if a husband and wife consent in writing to artificial insemination with semen donated by someone other than the husband, the husband is ir- rebutably presumed to be the father of the conceived child. See, e.g., GA. CODE ANN. § 19-7-21 (1982); Unif Parentage Act § 5, 9A U.L.A. 592-93 (1979). See generally Wadlington, Arttlidal Conception:The ChallengeforFamily Law, 69 VA. L. REv. 465,483-84 n.84 (1983) (surveying state statutes on artificial insemination).

83.See, e.g., WASH. REv. CODE ANN. § 26.26.050(2) (Supp. 1986). The issue of whether

donors are responsible for the support of children conceived by their sperm is often avoided by medical practices designed to preserve donor anonymity. See Curie-Cohen, CurrentPractice of ArlificialInseminationby Donorin the United States, 300 NEw ENG.J. MED. 585, 588-89 (1979).

84.Provisions in surrogate contracts which provide for payment to the surrogate mother

beyond her expenses are considered unenforceable in the forty-nine states that prohibit pay- ment to parents for the termination of parental rights. See Wadlington,supra note 82, at 479-

82; Note, Parenthoodby Proxy: Legal Implications of SurrogateBirth, 67 IowA L. REV. 385, 389 (1982). Moreover, such contracts have been criticized on the grounds that contractual analy- sis does not adequately consider the best interests of the child. Note, supra, at 389. But see

REsTATEMENT (SEcoND) OF Comitucrs §§ 178, 179 (1979) (promises may be unenforceable on grounds of public policy). There is some evidence, however, that contracts are being used successfully to structure surrogate parenting arrangements in some cases. See, e.g., Syrokow- ski v. Appleyard, 420 Mich. 367, 362 N.W.2d 211 (1985) (requiring circuit court to accept subject matter jurisdiction over biological father's request under Paternity Act for order of filiation declaring paternity of child conceived by surrogate mother under surrogate parent

contract). See also Brophy, A SurrogateMother Contractto Bear a Child,20J. FAM. L. 263 (1981-

82)(presenting surrogate parenting contract used in author's practice with infertile couples).

85.The most commonly litigated dispute involving reproductive technology occurs in a divorce or support proceeding in which a woman who conceived a child by artificial insemina- tion from a third party seeks support for the child from her husband. Courts address this issue by determining whether the husband consented to the insemination procedure and whether the form of consent was adequate to comply with the formality requirements im-

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cessfully argued with contract doctrine and discourse,86 a discourse which fully dominates the decisions.8 7 Because the issues are often cast in a complicated configuration that would be pedagogically stimulating, and because the cases contain subject matter such as human reproduction, the organization of the family, and the legal protection of personhood which could be very meaningful to stu- dents, including these materials in this casebook would be a plausi- ble way to break the silence it otherwise imposes on legal problems which currently have particular significance for many women.

Contracts casebook editors might object to using reproductive technology materials, or other materials thought to be of special in- terest to women, such as cohabitation and separation agreement disputes, on the grounds that they should not be expected to satisfy special interest groups in their case selections. I agree that legal content, not interest group satisfaction, should be the appropriate standard for including material. However, even when "women's" materials like the reproductive technology cases satisfy other peda- gogical requirements, editors generally exclude such material from contracts casebooks, presumably because it is "customary" to omit material from casebooks that is considered basic subject matter in other courses.88 Omitting "womens" issues in contracts, therefore, is purportedly justified as a neutral curricular decision to defer such issues to more appropriate courses, which usually means the domes- tic relations or sex discrimination courses.

This deferral is not neutral. By confining issues that particularly concern women to domestic relations or sex discrimination courses, casebooks combine with standard law school curriculums to perpet- uate the idea that women's interests are personal, concerning only themselves or their families. Men, in contrast, are concerned with

posed by statute. See R.S. v. R.S., 9 Kan. App. 39, 670 P.2d 923 (1983). See also supra note 84 (discussing surrogate parenting contracts).

86.See R.S. v. R.S., 9 Kan. App. 89, 670 P.2d 923 (1983) (utilizing equitable estoppel and implied contract doctrines to interpret formality requirement of spousal consent provision imposed by state statute); see also Karin T. v. Michael T., 484 N.Y.S.2d 780, 127 Misc.2d 14 (1985); Anonymous v. Anonymous, 246 N.Y.S.2d 835,41 Misc.2d 886 (1964); Gursky v. Gur- sky, 242 N.Y.S.2d 406, 39 Misc.2d 1083 (1963).

87.Thus, there is a natural fit between the reproductive technology materials and a con- tracts course. Moreover, the family law context in which these cases arise is sufficiently acces- sible so that it should not be a barrier to using the cases in a contracts course.

88.Indeed, Grant Gilmore has described contract doctrine as "a residual category- what is left over after all the 'specialized' bodies oflaw have been added up ...... GILMORE, THE D.ATu oF ComRAar 7 (1974). Editors generally not only leave domestic relations cases out of basic contract materials, but they also minimize the number of cases involving such subjects as insurance, labor relations, admiralty, and business organization. See, e.g., F. Kass- ,ER & G. GILMORE, ComRAcTs: CASES AND MATERIALS vii (2d ed. 1970) (explaining omission of materials on labor contracts and antitrust in second edition) [hereinafter cited as F.

KEssL R].

1092 THE AMERICAN UNIVERSrY LAW REVIEW [Vol. 34:1065

the rest of life. Introducing reproductive technology materials into a contracts casebook would integrate a "woman's" issue into a com- mercial course, thereby loosening a traditional curricular link be- tween subject matter and the sexes. This change would challenge the gendered message curriculums usually imply regarding the sep- arate interests of men and women.

There may, however, be reasons other than course jurisdiction for excluding women's issues like reproductive technology from Daw- son, Harvey, and Henderson. In this casebook, the editors use predominantly commercial issues to illustrate the complicated doc- trines of mutuality of assent, while more personal issues are used to illustrate the counterprinciples of reliance and promissory estop- pel.8 9 This commercial and personal dichotomy between the cases invites readers to analogize the stereotypical gender differences be- tween the sexes to the differences between groups of conflicting rules. That is, readers could assume that, because men as a group customarily dominate women, the rules of assent, which are illus- trated with cases involving the commercial side of life, where men dominate, must be more significant than the rules of reliance, which are largely illustrated with cases involving the more personal side of

life, where women have traditionally been consigned. Excluding "women's" issues from this casebook, therefore, permits the con-

tent of the cases to work doctrinally to further gender stereotypes. Because readers interpret gendered clues in cases, the editors' se-

89.Excluding the section of cases on standard form contracts, which is extensively dis- cussed later, see infranotes 195-217 and accompanying text, the 35 other major cases in the chapter on assent doctrineJ. DAWSON, supranote 1,at 261-486 (chapter three, "The Consen- sual Basis of Obligation"), include only four cases involving family relations or family transac- tions. In several of the cases in which one corporation is suing another, one has no sense of the people who acted for the corporations in the transactions that gave rise to the disputes. See, eg., Idaho Power Co. v. Westinghouse Electric Corp., 596 F.2d 924 (9th Cir. 1979), ex- cerpted inJ. DAwsoN, supra note 1, at 368; Allied Steel & Conveyors, Inc. v. Ford Motor Co.,

277 F.2d 907 (6th Cir. 1960), excerptedinJ.DAwsON, supra note 1,at 313; Humble Oil &Refin- ing Co. v. Westside Investment Corp., 428 S.W.2d 92 (Tex. 1968), excerptedinJ. DAwsoN, supra note 1, at 375.

In contrast, the unit of six cases on promissory estoppel includes no cases involving sale of goods or construction contracts. There are two cases involving family disputes, Kirksey v. Kirksey, 8 Ala. 131 (1845), excerpted inJ. DAwsoNsupra note 1, at 192 (brother-in-law's breach of agreement to help sister-in-law "raise her family") and Seavey v. Drake, 63 N.H. 393 (1882), excerptedinJ. DAwsON, supra note 1, at 192 (father's failure to give son deed to land son had farmed). A third case involves a woman's promise to leave money for a scholarship fund in her name to a college. Allegheny College v. National Chatauqua County Bank, 246 N.Y. 369, 159 N.E. 173 (1927), excerpted inJ. DAWSON, supra note 1, at 194, and a fourth case in- volves a married couple's dispute with a bank over insurance payments on their ranch wagon. East Providence Credit Union v. Geremia, 103 R.I. 597, 239 A.2d 725 (1968), excerpted in J. DAwsON, supra note I, at 203. The two cases involving employment contract disputes convey a concrete sense of the individuals involved. See Goodman v. Dicker, 169 F.2d 684 (D.C. Cir. 1948), excerptedin. J. DAwsoN, supra note 1, at 217; Forrer v. Sears, Roebuck &Co., 36 Wis. 2d 388, 153 N.W.2d 587 (1967), excerpted inJ.DAwsON, supra note 1, at 214.

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2.Women as authorsand in the language of the casebook

In addition to their significance as "characters" in the casebook, the way women appear as authors and in the casebook language also influences readers' ideas about gender. Thus, some readers who see the judges and legal commentators whose work editors select for reproduction in a casebook as professional role models are inter- ested in how many women are among those selected. Readers today are also sensitive to whether editors recognize women in the lan-

guage of a casebook, both as characters in a book's questions and

problems and through the use of feminine pronouns when authors or editors write about the generic person.93 Readers who examine Dawson, Harvey, and Henderson closely to evaluate the appearance of women as authors or in the language will find, however, that women are virtually invisible in these aspects of the casebook. 94

Beginning with the language of the book, readers will find that the editors and their authors use masculine pronouns consistently throughout the cases and the materials to refer to the generic per- son. A provision of the U.C.C., which the editors include in the casebook, forthrightly claims that "words of the masculine gender [should be understood to] include the feminine and the neu-

ter.... ."95 The practice extends, however, substantially past the

U.C.C. in Dawson, Harvey, and Henderson to reach even cases involv- ing women, where judges use masculine pronouns to phrase the rule statements that apply to female parties.95

Historical custom might explain the exclusive use of masculine pronouns in the U.C.C. and the older decisions, but it will not elimi- nate the impact that the casebook's lack of feminine pronouns has on most readers. And yet the casebook editors never take corrective measures through their editing perogatives to assure readers that the particularity of women is recognized. Thus, for example, the editors leave undisturbed law review excerpts in which influential

93.For an essay by a linguist discussing the relationship between language and gender formation, see McConnell- Ginet, D'ference andLanguage:A Linguist'sPerspectivein TuE FUTURE or DirrnRNcE, 157-66 (H. Eisenstein & A.Jardine eds. 1985).

94.Although I write as if readers in general will notice the observations elaborated here about women as authors and in the language of the casebook, typically only readers who are conscious ofgender issues are likely to notice such things. I believe, however, that most read- ers are influenced by these gender-related factors.

95.U.C.C. § 1-102(5)(b) (1977), quoted inJ. DAwsoN, supra note 1, at 977.

96.See, e.g., Parker v. Twentieth Century-Fox Film Corp., 3Cal. 3d 176,474 P.2d 689, 89 Cal. Rptr. 737 (1970), excerpted inJ. DAwsoN, supra note 1, at 46, where the dissenting judge

states that the general principle that "governs the obligations of an employee after his em- ployer has wrongfully repudiated or terminated the employment contract... requires him to make a reasonable effort to secure other employment. He is not obliged, however, to seek or accept any and all types of work which may be available." Id.at 185, 474 P.2d at 695, 89 Cal. Rptr. at 743, excerptedinJ. DAwsoN,supra note 1,at 46,51 (emphasis added, footnote omitted).

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commentators write as if parties to contracts are exclusively male 97

or in which distinguished scholars speak directly and specifically to readers as men.98

Dawson, Harvey, and Henderson also fails to modify their own lan- guage to include feminine pronouns. Of the nine problems which the editors have created for the casebook, almost all contain neutral,

nongendered names such as "s" and "b ," "a" and "b ," "trustee" or "vendee." 9 9 But in those instances where the editors do not de-

scribe the figures in the problem neutrally, they refer to them by male pronouns, 10 0 with the sole exception of one question, (out of six, in the fourth problem), in which the editors refer to a shopper

interested in purchasing an alligator handbag as "she."'' Using a

97.See, e.g., Fuller & Perdue, The RelianceInterestin ContractDamages,46 YALE L.J. 52, 56- 57 (1936), quoted inJ.DAWSON, supra note 1, at 4-5. In the reproduced portion of this influen- tial description of the three purposes served by contract damages, promisors and promisees are consistently referred to as men. This passage is pivotal for readers, since it conceptually frames and organizes the lengthy materials on damages that follow.

98.Consider, for example, two passages placed relatively early in the book with the ap- parent intention of directing the readers' attention beyond the development of legal doctrine. Thus, in a portion of the stirring Holmes essay which includes the phrase, "[ilf you want to know the law and nothing else, you must look at it as a bad man .. ." the clear and personal voice of thejustice speaks directly to readers who want to know the law, but he speaks to the readers quite specifically as men. Holmes, The Path of the Law in COLLECTED LEGAL PAPERS 168-76 (1920), quoted inJ.DAwsoN, supranote 1, at 30-33. Similarly, later in the book, having advised readers that they should know something aboutjudicial style, the editors reproduce several paragraphs from The Bramble Bush, where Karl Llewellyn links clarity, consistency,

craft, knowledge, beauty and vision with the needs and aspirations of "a man," "a man," and "a man." K. LT.EwELLN, THE BRAmBLE BuSH 157-58 (1951), quotedinj. DAwsoN, supra note 1,

at 110-11. Like the passage by Holmes, this piece reaches directly to readers with ambitious goals for themselves, but one knows from the many references to men that the readers Llewelyn addresses here are decidedly not women.

99.J. DAwsoN, supra note 1, at 98 (contract between "s" and "b"); id at 133 (dealings between "vendor" and "vendee"); id. at 227 (contract between "seller" and "buyer"); id at

304(claims of"a" and "b"); id at 353 (bids of "sub" and "general"); id at 365 (negotiations between "offeror" and "offeree," "v" and "p"); id at 640 (sale of land by "s" to "b "); id at

855(conveyance from "vendor" to "vendee").

100.J. DAwsoN, supra note 1, at 284-85 (referring to purchaser attempting to buy fur coat, supermarket purchaser, medical school applicant, homeowner and auctioneer by male pronouns).

101.In addition to the nine problems Dawson, Harvey and.Henderson have written for the casebook, they have also included a much larger number of shorter "questions" which are dispersed throughout the book. Like the problems, the questions do not use feminine names or pronouns to refer to persons generically. However, a few questions which refer to cases involving women do use feminine pronouns to refer to those parties. E.g., id at 125, 233,

918.Indeed, one of the few examples of blatant sexism I have found in the book involves one

such question. Immediately following the note case of Ricketts v. Scothorn, 57 Neb. 51, 77 N.W. 365 (1898), excerptedinj. DAwsoN, supra note I, at 193, the editors challenge that court's use of equitable estoppel in a case in which a granddaughter is suing her grandfather's estate to enforce his promise to give her money so that she could stop working. Although the granddaughter had returned to work after a year, and the court found that in her year of not working she had "altered her position for the worse on the note being paid in full," Dawson, Harvey and Henderson ask "Was Katie's position altered very much 'for the worse?' "J.DAw- soN, supranote 1, at 193. I doubt they would have asked such a question if Katie had been a male grandchild, for whom work would have been understood as important for his feelings of

1096 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 34:1065

feminine pronoun once, and then only in conjunction with the stere- otypical woman's role of mindless consumer, hardly compensates for the many instances in the casebook where women were not rec- ognized because of historical custom. Instead, a reader's over- whelming impression is that the casebook is not addressed to, nor does it contemplate, women.

In addition to blocking women out of the language, the casebook conveys the mistaken impression that legal authors are exclusively male. One cannot tell from reading the cases whether the judges who wrote the decisions are men or women. In other materials that introduce readers to some of the heroes of the law and their ideas,' 0 2 however, the editors leave many clues that men monopo- lize legal authorship in contracts.103 Unlike their sexblind treatment of case authors, the editors often indicate the sex of legal commen- tators in the book, either by including their first names when their

0 4to refer to them names are used1 or by using masculine pronouns

in editorial material.' 0 5 Indeed, by including their portraits or pho- tographs among the illustrations in the book the editors remind readers that Holmes, Mansfield, Corbin, Llewellyn, Cardozo, and Hand were not women.' 0 6

Well, ofcourse they weren't, the Individualist Reader might object here. Surely Dawson, Harvey, and Henderson should not be asked to distort history, nor should they be blamed for the historical dis- crimination against women in the legal profession. No, they shouldn't; and yet I think they are responsible for the way their casebook influences readers' views regarding women's current op- portunities in the legal profession. I think the invisibility of women as legal authors and in the casebook language may be a significant omission to readers. Readers may well understand that for peda- gogical reasons the casebook must rely heavily on materials pro-

self-respect. Indeed, I also doubt that the court or Dawson, Harvey, and Henderson would have referred to a male grandchild by his first name.

102.Dawson, Harvey, and Henderson state in their preface that in addition to "substan- tive knowledge and analytical skills," their book aspires to pass on "a language and a culture."

J.DAwsoN, supra note I,at xvii.

103.In fact at least several cases in the casebook were written by women. See, e.g., Sheets

v.Teddy's Frosted Foods, 179 Conn. 471,427 A.2d 385 (1980) (Ellen PetersJ.), excerpted inj.

DAWSON, supra note I,at 254; Bleecher v. Conte, 29 Cal. 3d 345, 626 P.2d 1051, 173 Cal. Rptr. 278 (1981) (Rose Bird, CJ.) excerpted inJ. DAWSON, supra note 1, at 660.

104.See, eg., J. DAWSON, supra note 1, at 4 (discussing work of "Lon" Fuller); ia.at 40 (discussing rebellion against chancery led by "Sir Edward" Coke).

105.SeeJ. DAWSON, supra note 1,at 589 (reference to Kronman, Mistake,Disclosure, Infonma- lion, and the Law of Contracts,7J. LEGAL STUDIES 1 (1978)).

106.Id. at 31 (illustration of Oliver Wendell Holmes, Jr.); idat. 772 (illustration of Earl of Mansfield); id.at 709 (photograph of Arthur Corbin); id at 459 (photograph of Karl Llewel- lyn); id at 195 (illustration of Benjamin Cardozo); id.at 344 (photograph ofJudge Learned Hand).

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duced when women were not recognized in common language usage-when they could not practice law, teach, or write decisions- indeed, when they had little opportunity to generate problems ame- nable to legal solutions. Some readers may also fully realize that circumstances have changed dramatically for women, that this casebook need not be understood to reflect current opportunities and attitudes. Because the casebook is one of the few sources from which many readers draw their sense of current legal culture, how- ever, they may interpret the absence of women in the casebook lan- guage and among its authors in a way Dawson, Harvey, and Henderson did not intend.

If, for example, The Feminist Reader or the Reader with a Chip on her Shoulder, uses the presence of women among the authors and in the language of the casebook to test the editors' stance to- ward women, the editors will fail to win her confidence. The casebook might then become a less effective learning device for such a reader. Alternatively, if The Feminist Reader, the Reader with a Chip on her Shoulder, or Readers Who are Undressed for Success look for women among the authors and in the casebook language because they need and seek some assurance that women or womanly people are not excluded from the profession, they will find nothing in this casebook to reassure them. Because the authors of the law in Dawson, Harvey, and Henderson all seem to be men, because legal scholars address men exclusively in their writing, and because the editors and judges do not refer to women in their rule statements or their questions, these readers will not know from this book that they can listen when legal authors speak, or that they might some day join their ranks.

In contrast with readers who are angered or hurt by the invisibility of women, the Gentleman Reader and the Reader with a Chip on his Shoulder will be relieved that these aspects of the casebook confirm their view that women are as unimportant in the legal world as they are (or should be) elsewhere. Insofar as the self-confidence of these

readers is related to their feelings that they are better than women, the casebook supports their particular form of self-esteem.1 0 7

107.One feminist commentator has described the psychological differences between men and women by making a similar point about the basis for male self-confidence:

All oppressed people must be controlled. Since open force and economic coercion are practical only part of the time, ideology-that is, internalized oppression, the voice in the head-is brought in to fill the gap.... Vast numbers of men can be

allowed to experience some power as long as they expend their power against other men and against women....

The Masculine Imperative means that men avoid the threat of failure, inadequacy, and powerlessness-omnipresent in a society built on competition and private prop-

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3.The placement of women's cases: gender and the implicationsof casebook organization

We have now examined women as "characters" in the cases, among the "authors" of the casebook, and in the casebook lan- guage. My claim in the preceding discussion has been that in the course of learning contract doctrine from these casebook materials, readers receive messages about gender that perpetuate their ideas about the divisions between the sexes. In some instances, the gendered messages also affect their view of doctrine, either because of an idea which a particular case conveys or because the organiza- tion of cases involving women or subjects generally associated with them suggests a gendered message to readers.108 My final observa- tions regarding the treatment of women in this overview of the casebook elaborate my claims regarding the significance of the casebook's organization of cases involving women.

The position that case organization affects readers' views of legal doctrine and legal theory is undoubtedly familiar. Editors can affect the way readers interpret the content of doctrine or the way they think about legal reasoning by rearranging the customary order of subjects within a casebook 0 9 or by placing decisions with similar facts but different outcomes side by side. If women were more rep- resented and less stereotyped in the casebook, readers might be un- likely to take gender into account in considering the doctrinal or theoretical significance of the relationships among cases. The lim- ited number of cases involving women in Dawson, Harvey, andHender- son, however, renders the presence of women a factor readers can interpret when they consider the significance of casebook organization.

Because readers hold multiple and conflicting ideas regarding the distinctions between the sexes, readers might attribute a number of different meanings to the organizational significance of cases involv- ing women. The two illustrations I discuss below involve only one of the many organizational issues one could explore and only one gen- der message. I focus on the use of women in two variations of the case/countercase organizational technique, a technique often used

erty-by existingagainst others. But the Feminine Imperative allows of no self-help at all. We existfor others.

J. Russ, supra note 17, at 44.

108.See supra note 89 and accompanying text.

109.For example, Lon Fuller's use of remedies at the beginning of his casebook is fre- quently cited as an example of the use of casebook organization to affect readers' views re- garding legal formalism. See Kare, ContractsJurispudence and the First-Year Casebook (Book Review), 54 N.Y.U.L.REv. 876, 882-84 (1979) (reviewing C. KNAIP, supra note 55).

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in casebooks. 110 And I concentrate on the message of subordina- tion, which I believe readers can construe from cases involving wo- men. Because the subordinate status of women in society is so commonly acknowledged, I think readers will be most inclined to think of that message when they consider the relationship between conflicting cases where only one of the cases involves a woman.

The case/countercase scheme typically encourages readers to dis- pute the formalistic reasoning of cases that are paired together. On a theoretical level, readers can interpret this scheme to imply that rules are ruthlessly indeterminate, that legal doctrine fails to pro- vide a predictable way to determine a certain result in particular sit- uations. More conservatively, readers can interpret the case/countercase scheme to imply that the rule of one case is an exception to the rule of the other case. This rule/exception interpre- tation is based on an assumption that one of the cases has less au- thority than the other, while the indeterminate interpretation is based on a belief that the cases could have equal authority. I believe that pairing a case involving a woman with a conflicting case involv- ing male parties invites readers to adopt the rule/exception inter- pretation of the case/countercase scheme rather than the indeterminate or rule/counterrule interpretation. The two examples I have chosen from the casebook not only contextualize this asser- tion but also suggest how gender strongly tempts readers to choose the more conservative interpretation of the case/countercase scheme.

Dawson, Harvey, and Henderson were unable to resist beginning their casebook with the decision of Hawkins v. McGee,' the well- known case a patient initiated against his doctor after plastic surgery left the patient with a hairy hand instead of the perfect hand the doctor had promised. As the introduction to contract remedies, the decision in Hawkins utilizes the expectation measure of contract damages.112 The ludicrous results that the standard promises to

110.There are at least a half dozen times in Dawson, Harvey, and Henderson where a wo- man's case is paired with a contradictory case involving a man. Compare Parker v. Twentieth Century-Fox Film Corp., 3 Cal. 3d 176, 474 P.2d 689, 89 Cal. Rptr. 737 (1970), excerpted inJ. DAWSON, supra note 1, at 46 (restrictive application of general mitigation rule in case involving female employee) with Rockingham County v. Luten Bridge Co., 35 F.2d 301 (4th Cir. 1929), excerpted in j. DAwsoN, supra note 1, at 41 (broad application of mitigation rule in case involv- ing a male contractor); compare Brackenbury v. Hodgkin, 116 Me. 399, 102 A. 106 (1917), excerpted inJ. DAWSON, supra note 1, at 331 (applying rule that offeror may not terminate offer for unilateral contract after performance begun in case involving female offeror) with Petter- son v. Pattberg, 248 N.Y. 86, 161 N.E. 428 (1928), excerpted inJ.DAWSON, supra note 1, at 323 (applying rule that offeror may terminate unilateral contract after performance begins in case involving male parties).

111.84 N.H. 114, 146 A. 641 (1929), excerpted inJ. DAwSoN, supra note 1, at 1.

112.The Restatement (Second) ofContracts indicates that expectation is the primary standard

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yield in the Hawkins case may prejudice the reader's respect for the expectation measure, however.113 The law review comment on reli- ance damages that follows the case,' 1 4 and a note case, also involv- ing plastic surgery, in which the reliance measure of damages provides more reasonable compensation to the injured party, 155 un- doubtedly assist this result. Thus, most readers would agree that the expectation measure does not work well in situations like Hawkins.

Dawson, Harvey, and Henderson, however, obviously believe that the expectation measure is the primary standard by which contract remedies are gauged, for expectation dominates the first three sec- tions of the book. If one holds this attitude toward the expectation measure, then one would not want readers to confuse their criticism of the effectiveness of the expectation measure in Hawkins with their appreciation of the importance the measure generally has in other remedial situations. In my judgment, the editors' choice of Sullivan

6

v. O'Connor"1 as the note case following Hawkins signals readers

that the reliance damage measure is an exception to the primary standard of the expectation measure. The plaintiff in Sullivan is a woman, "a professional entertainer," who sought plastic surgery on her nose.. .to "enhance" her beauty and improve her appearance. These facts will surely remind many readers of the stereotypical im- age of woman as princess (or beauty queen)-vain, self-absorbed, and decidedly inferior not only to men but to worthier women as

17	Connecting this image of inferiority to the reliance measure
well. 1

of damages utilized in the case will encourage readers to believe that, however fairly the decision in Sullivan seems to come out, the reliance standard it utilizes is inferior to the basic principle set forth in Hawkins.

for measuring contract damages. RESTATEMENT (SECOND) OF CONMT'At"s § 347 (1979). The expectation measure, which gives an injured party damages measured by the value of the performance he or she was promised, is frequently contrasted with the reliance measure. The expectation measure puts an injured party where she would have been but for the breach, whereas the reliance measure puts an injured party where she would have been but for the contract. See generally Fuller & Perdue, supranote 92, at 54, quoted inJ. DAWSON, supra note 1,at

5.

113.The court concludes that the appropriate measure should be "the difference between the value.., of a perfect hand... and the value of the hand in its present condition...." Hawkins v. McGee, 84 N.H. 114, 117, 146 A. 641, 644 (1929), excerpted inJ. DAwsON, supra note 1, at 1, 3.

114.The excerpt from Fuller's Article on reliance damages includes his critique that there is less justification for the use of the expectation measure than the reliance or restitution measure. Fuller & Perdue, supra note 92, at 56-57, quoted inJ.DAwsON, supra note 1, at 5.

115.Sullivan v. O'Connor, 363 Mass. 579, 586-89, 296 N.E.2d 183, 188-90 (1973), ix- cerpled in J. DAwsoN, supra note I, at 5, 6.

116.l. at 579-80, 296 N.E.2d at 184, excerpted in. DAwsoN, supra note 1, at 5.

117.See generally L. GILBERT & P. WEBSTER, BOUND BY LOVE THE SwEEr TRAP OF DAUGHT- ERHOOD 1-19 (1982).

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The Hawkins and Sullivan case/countercase example concerns a relationship between a major case and a note case. My second ex- ample of the way the subordinate status ofwomen affects the inter- pretation of casebook organization involves a relationship between sections within a chapter. (This is a section/countersection varia- tion on the case/countercase scheme.) The editors have organized the four sections of the contracts remedies chapter so that the first two sections are primarily concerned with the expectation standard for measuring damages. The expectation standard also dominates the third section, which deals with reliance and restitution damages, because the editors present these alternative damage remedies in terms of their relationship to the expectation measure. The expecta- tion measure, therefore, commands considerable authority by the time the reader turns to the fourth section of the chapter, which is on equitable remedies. The preceding sections of the chapter have demonstrated that money damages often fail to secure an injured party her expectation interest. Upon learning that an equitable remedy requires the breaching party to do exactly what she agreed to do readers might assume that equitable remedies promise to achieve the goals of the expectation standard more satisfactorily than money damages. Indeed, the reader approaching the casebook section on equitable remedies is likely to wonder whether it contains the ultimate form of expectation damages-this unit might be the capstone of the chapter.

The concentration of cases involving women in the equitable rem- edies section, however, is likely to signal readers that equitable rem- edies are subordinated to money damages as the common method of effectuating the expectation standard. Of the eighteen major cases that precede the equitable remedies section in the chapter, a reader may have noticed only one woman among the parties. 1 18 In contrast to the low number and proportion of cases involving wo- men in the preceding cases, three of the five cases in the equitable remedies section involve women as parties.'1 9 Since women domi-

118.Parker v. Twentieth Century-Fox Film Corp., 3 Cal. 3d 176, 474 P.2d 689, 89 Cal. Rptr. 737 (1970), excerpted inJ. DAWSON, supranote 1, at 46. In fact there are two cases that involve women among the eighteen that precede the equitable remedies section, but readers may overlook the presence ofa woman in De Leon v. Aldrete, 398 S.W.2d 160 (Tex. Civ. App. 1965), excerpted inJ. DAwsoN, supra note 1, at 114. Although the editors state in an opening note that the defendants are husband and wife, the court refers to the DeLeons throughout the opinion as "the defendants," thereby disguising their sex for the remainder of the opinion.

119.The three cases involving women are: Fitzpatrick v. Michael, 177 Md. 248, 9 A.2d 639 (1939), excerpted in J. DAwsoN, supra note 1, at 128; Gartrell v. Stafford, 12 Neb. 545, 11 N.W. 732 (1882), excerpted in J. DAwsoN, supranote 1, at 118; Timko v. Useful Homes Corp., 114 N.J. Eq. 433, 168 A. 824 (1933), excerpted in J. DAwsoN, supra note 1, at 123.

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nate this unit of cases, some readers will use this fact as a clue to the relative value of equitable remedies. By comparing the inferior sta- tus of women to the relationship between the "women's" unit on damages (the equitable remedies section) and the "men's" unit (the money damages sections), these readers would assume that money damages are dominant. Under this interpretation, which comports with the position of the Restatement, 120 the equitable remedies sec- tion is not the capstone of the contract damages chapter; instead it demonstrates that some aspects of law-like some aspects of soci- ety-are subordinate to others.

Because the organization of cases involving women in both of the preceding examples reinforces a doctrinal message that is in accord with substantial authority, 12' it might be tempting to assume that readers will benefit from the gendered messages they gleaned from the organizational significance of these women's cases. As I will demonstrate in the two major case studies presented later in the Es- say, however, there are times when certain readers will misinterpret the organizational significance of women's cases, which will hinder their ability to learn particular doctrinal messages. In addition, I believe that readers are personally harmed when the relationship between casebook structure and doctrine depends on gender. Utilizing the subordinate status of women as part of doctrinal analy- sis reinforces the division between the sexes. It reminds men and women of the different historical treatment of the sexes, it revital- izes the nefarious contention of gender-related thinking that men are superior to women, and, as in the examples discussed here, it sometimes rewards readers for extending these ideas to legal analy- sis. Readers who think about the subordinate status of women un- derstand the casebook better than those who don't.

Readers are harmed when the relationship between casebook structure and doctrine depends on gender because this kind of orga- nizational message analysis is implicitly based on the manipulation of women. Although cases involving men are organized so that their position in the book also conveys doctrinal messages, these messages are not sex-linked. Cases involving women are the cases that carry the extra organizational punch. Admittedly, the casebook organization manipulates cases involving women, rather than women themselves, but this form of organizational interpretation neverthe-

120.Cf. RESTATEMENT (SECOND) OF CONTRACTs §§ 347, 359(l) (1979). Section 359() pro-

vides: "(1) Specific performance or an injunction will not be ordered if damages would be adequate to protect the expectation interest of the injured party." Id See also supranotes I11- 116 and accompanying text.

121.Seesupra notes 114, 120.

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assumption that casebook readers generally share my views that an- alytical intellect, detachment, autonomy, and control seem mascu- line, whereas emotional intellect, attachment, compassion, and spontaneity seem feminine. I do not claim that these qualities are essential to either sex. In fact, I would argue that they aren't. I only claim to have described my impressions of the way many people un- derstand the content of gender.' 38

Because we can also use the traits that we attribute to men and women to describe things (such as boats, machines, and buildings), objects which are described by characteristics predominantly related to one sex can be directly identified by gender.'3 9 Although any cultural artifact can seem gendered, books are especially susceptible to seeming male or female because one can use their contents, as well as their form and function, to determine their character. For me, considering the style as well as the contents of Dawson, Harvey, andHenderson, the casebook's most salient characteristics are its ana- lytical, abstract character and its authoritarian neutrality. I believe that these characteristics are commonly understood as masculine and, therefore, that the casebook itself seems male. In the remain- ing pages of this part, I will demonstrate why the characteristics I have mentioned accurately describe Dawson, Harvey, andHenderson; I will also describe the effect of the casebook's maleness on readers.

1.The analytical,abstract characterof the casebook

The analytical and abstract character of Dawson, Harvey, and Hen- derson stems in part from the organizational structure the editors have chosen. The editors have used several organizational tech- niques that not only are abstract or analytical in themselves but that also encourage abstract analysis in casebook readers. The editorial

138.Although the attributions I have made accurately reflect how I think many people would characterize the sexes, I also believe that people attribute qualities to the sexes in a relational way. That is, when women exhibit the traits generally ascribed to men, we tend to think of these traits in comparison to opposing, differently formulated traits linked to men. We make the same comparative adjustments when men exhibit "feminine" characteristics. However, because of men's traditional dominance over women, the traits which were positive when we they were linked with men may seem negative when they are attributed to women. Thus, women may be described as scheming, cold, selfish, and manipulative, when they ap- pear intellectual, detached, autonomous, and in control, while men may be described as unin- hibited, loyal, considerate, and easy-going, when they seem emotional, attached, compassionate, and spontaneous.

139.As long as we continue to identify characteristics by one sex or the other, the only barrier to fully genderizing all our artifacts is whatever limits our imaginations impose on our willingness to personify things. My sturdy, dependable, capacious, cyclical washing machine is certainly an "old girl," rather than an "old boy" to me, while the computer on which I am composing these words is so logical and self-contained that I could never think of it as female. If I were able to anthropomorphize it at all, it would be male.

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decision to open the book with a substantial unit on contract reme- dies illustrates this kind of technique.' 4 0 This opening distinguishes

Dawson, Harvey, and Henderson from most other contracts books. 14 '

The idea of beginning a contracts casebook with remedies was origi- nally introduced as a way to use the organization of the contracts casebook to challenge formalistic legal analysis, 14 2 and even today this way of organizing a book seems counterintuitive. Students ex- pect that they should learn about contract formation and breach before they study remedies. 14 3 The analytical challenge of the casebook's organization tends to dominate readers' responses to the casebook. The remedies beginning encourages readers to focus, from the very outset of the book, on an enormously complicated rule structure that they find hard to connect with their own experi- ence. The opening of the casebook thus initiates and facilitates an

abstract and analytical response to the casebook.

After the opening chapter on remedies, the editors continue to organize the casebook according to doctrinal categories that are di- vorced from the chronological or relational contexts of contract transactions. 144 This organization also encourages readers to focus on rules in the abstract. Because the structure separates the rules from the more concrete and personalized aspects of the casebook-

the case settings, the parties, and even thejudges who authored the

decisions-the casebook encourages an approach to contracts which can seem exceedingly impersonal. 145

The extensive use of the case/countercase organizational tech-

140.J. DAwsON, supra note I, at 1-143.

141.See, e.g., L. FULLER & M. EISENBERG, BASIC ComaCr LAW (4th ed. 1981); C. KNAPP, supra note 55; F. KESSLER, supranote 88; A. MUELLER, A. Rosmr & G. LOPEZ, CONTRACT LAW AND ITS APPLICATION (3d ed. 1983).

142.See KIare, supra note 109, at 882.

143.This form of organization probably seems natural because it is "chronological." See Kiare, supra note 109, at 878. It also seems natural to students, however, because many con-

tract study aids and contract treatises are organized chronologically. See, e.g., J. CALAMARI &J. PERILLO, THE LAW OF CONTRACTS (2d ed. 1977); M. EISENBERG, GILBERT LAW SUMMARIES: CONTRACTS (1lth ed. 1984); S. EMANUEL & S. KNOWI.ES, EMANUEL LAW OrLINES: CoNTrACTs (2d ed. 1984); E.A. FARNSWORTH, CONTRACTS (1982); G. SCHABER & C. ROHWES, CONTRAcTS IN A NUTSHELL (2d ed. 1984); RESTATEMENT (SECOND) OF CONTRACTS (1979); cf LEGALINES: COTRACTS (R. Meslar ed. 1983) (adaptable to courses utilizing materials by Dawson).

144.Examples of the categories into which the editors divide the casebook are "Grounds for Enforcing Promises" and "The Consensual Basis of Obligation." See J. DAwsON, Supra note 1, at xix (summary of Table of Contents).

145.My claim here should be familiar, in that the impersonality of legal study has been described and criticized elsewhere. See, e.g., J. NOONAN,JR;, PERSONS AND MASKS OF TIE LAW vii-xii, 3-28 (1976). See also G. Frug, The Ideology of Bureaucracyin American Law, 97 HARv. L. REv. 1276, 1293-95 (1984); Gabel, Intention and Structure in ContractualConditions: Outline of a Methodfor CriticalLegal Theory, 61 MINN. L. REv. 601 (1977); Gabel, Book Review, 91 HARv. L. REv. 302 (1977) (reviewing R. DWORmN, TAKING RIGHTS SERIOUSLY (1977)). What is different about my assertion, however, is the contention that impersonality seems male to gender-con- scious readers.

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nique also illustrates the book's analytical and abstract character. This technique could produce concrete rather than abstract read- ings of conflicting cases if readers could evaluate the factual differ- ences between decisions. The factual distinctions do not speak for themselves, however, and the casebook does not provide any gui- dance about how to evaluate them. If Dawson, Harvey, andHenderson readers, therefore, use the case/countercase technique to focus on factual comparisons between conflicting cases, this analysis is likely to produce an abstract discussion. Moreover, as I have stated ear- lier,146 the case/countercase technique typically invites readers to use the doctrinal relationship between specific contract rules as a way of thinking about the theoretical implications of contract doc- trine. This too produces an abstract analysis of the materials.

Although the organizational factors discussed above contribute to the analytical, abstract characteristic that makes this casebook seem male, this characteristic stems primarily from the contents of the casebook. Like the majority of law casebooks, this casebook mostly contains appellate decisions that concentrate on doctrinal analysis. Just as casebook editors like Dawson, Harvey, and Henderson adopt strategies that encourage readers to separate rules from contexts, so appellate courts commonly subordinate discussion of the contexts of disputes in order to focus on rule analysis. Thus, a major reason that Dawson, Harvey, andHenderson seems male is because it contains so many appellate decisions.

My claim that Dawson, Harvey, andHendersonseems male because it utilizes organizational techniques and subject matter that are rou- tinely used in legal education may seem fanatical. Using appellate opinions or organizing materials by doctrinal categories shouldn't be considered "male," the Individualist or Civil Libertarian Reader might object: using these things is simply normal. However "nor- mal" the character of this casebook may seem to some readers, its abstract, analytical traits will make it seem male to other readers. One of the problems with the ideology of gender is that men's dom- inance over women permits the eclipse of traits that are associated with women. Male traits seem standard only because female traits are suppressed from observation and consideration.

In any event, it is disingenuous to claim that this casebook is so "normal" that its analytical and abstract character should not be

considered male. Other editors in recent years have departed from the organizational forms and case-conservative content that Daw- son, Harvey, and Henderson have chosen. Casebooks that are or-

146.Seesupra note 110 and accompanying text.

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ganized around problems particularly challenge the assertion that this casebook is a standardized, nongendered document, because the problem technique renders casebooks substantially more "femi-

nine" than Dawson, Harvey, andHenderson. 47 Problems permit read- 1

ers to personalize casebooks. Problems require students to undertake tasks that involve their interaction with the materials, that allow them to observe contexts which include settings, characters or issues that often mirror their lives. Casebooks utilizing the problem technique dispute the claim to "normalcy" of a casebook like Daw- son, Harvey, and Henderson, and the contrasting level of abstraction between the two types of books emphasizes the "maleness" of Daw- son, Harvey, andHenderson.

In addition to the appellate decisions that dominate the content of Dawson, Harvey, andHenderson, I believe that the illustrations the edi- tors have included in the casebook also demonstrate the casebook's abstract and analytical character. I consider the illustrations part of this casebook's appeal for readers; students are unaccustomed to charming felicities in legal reading matter. The idea of using illustra- tions in a law casebook suggests an editorial compassion for weary readers and a somewhat impish desire to surprise: the idea seems, in a word, "feminine." As it turns out, however, the illustrations in this casebook emphasize the abstract, depersonalized quality of the book as a whole, partially because when one comes up on them the illustrations seem so odd, in contrast to the other material, and par- tially because the editors fail to connect the illustrations to the con- tent of the book. Although none of the illustrations included in the casebook can literally be labelled abstract, because they each repre- sent a concrete object or person, they seem abstract because, with two exceptions they have only a tenuous relationship to the sub- stance of the book. 148 The illustrations are interesting but only in

147. See, e.g., C. KNAPP, supranote 55; T. MORGAN & R. ROTUNDA, PROBLEMS AND MATERI-

ALS ON PROFESSIONAL RESPONSIBILMT (2d ed. 1981); E. RABIN, FUNDAMENTALS OF MODERN REAL PROPERTY LAw (2d ed. 1982).

148.The illustrations that arguably are useful to the way readers understand the book accompany Rockingham County v. Luten Bridge Co., 35 F.2d 301 (4th Cir. 1929), excerpted in J. DAwsoN, supra note 1, at 41, and Mitchill v. Lath, 247 N.Y. 377, 160 N.E. 646 (1928), ex- cerptedinJ. DAwsON, supra note 1, at 426. The Luten Bridge illustration shows the photograph of a bridge, J. DAwsoN, supra note 1, at 43, that a construction company continued to build after county commissioners rescinded the contract for its construction and discontinued work on the connecting surface roads. Because the bridge looks quite substantial and unoccupied in the picture, it may reinforce the arguments in the decision regarding the value of mitigating damages. The Mitchill photographs,J. DAWSON, supra note 1, at 427, 430, show an elaborate summer house and the plain wooden ice house that blocked its view. The summer house purchaser claimed that the seller had agreed to tear the ice house down. The photograph of the buildings may help readers determine whether the parties were likely to have included such an agreement in the contract for sale of the house. I think I may be giving the editors the

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themselves; they are sometimes funny (one is surprised in seeing

them), but they do not help readers understand the cases or the legal doctrine they are studying. 149

Because the form and content of this casebook together make its analytical and abstract character so predominant, the casebook en- courages readers, by example, to cultivate the analytical portions of their intellect, and to separate themselves from their work. Readers do not receive positive reinforcement to nourish their emotional sensibilities or to empathize with dients and their problems as part of legal problem solving. Insofar as the activities that the casebook neglects to nurture are commonly understood as feminine, the casebook subtly warns readers, as future lawyers, to repress the fem- inine characteristics within themselves.

2.The authoritarianneutrality characteristic

Like many law casebooks, Dawson, Harvey, and Henderson seems neutral both in style and content. The editors have not visibly in- jected themselves or their opinions into the casebook, so that there seems to be no editorial presence in the casebook. Moreover, the editors have selected uncontroversial material to accompany the ap- pellate decisions in the casebook, so that the contents of the casebook are quite unlikely to provoke emotional responses from readers. Although the editors have chosen to evade personal in- volvement and commitment in their casebook, they never acknowl- edge that the book's neutrality is deliberately contrived; they do not admit that their casebook has a point of view. Thus, the editors are authoritarian about the casebook's neutrality; they offer readers no information about what is left unsaid in their casebook. Because most readers associate detachment and control with men, the au- thoritarian neutrality of this book seems male. Several examples demonstrate this characteristic.

benefit of the doubt on the Mitchill photos, however, since they do not affect my own views of the case.

149.At best the illustrations may help readers remember the cases they accompany. At worst, perhaps inadvertently, they convey information to readers about the hierarchy of the legal profession. Thus, the illustrations of four celebrities, mentioned supra note 64, could suggest that only famous clients are sufficiently interesting to warrant illustrations, and most lawyers won't have the opportunity to represent such people. The six imposing photographs of legal heroes, mentioned supranote 106, are a visible reminder that women and minorities do not yet have a significant presence in the profession. The full page picture of a cow that accompanies Sherwood v. Walker, 66 Mich. 568, 33 N.W. 919 (1887) (overruled in Lenawee Co. Bd. of Health v. Messerly, 417 Mich. 17, 331 N.W.2d 203 (1982), ecerpledinJ. DAwsON, supra note 1, at 561, 568, amusingly labelled "Black Angus in Pensive Mood," seems like an exception to the mulish, humorless charge ofabstraction I have developed against the illustra- tions. The Black Angus seems to be the editors'joke on their own illustrations. Why is this in here except to make us laugh?

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I have already examined the impersonal style of the casebook in my earlier discussion of the editors' use of neutral names and neutered pronouns in the casebook's problems and questions.'1 0 The neutrality of that language is consistent with other ways in which the editors maintain a distance between themselves and their casebook. The casebook lacks, for example, any significant discus- sion regarding the theoretical implications of beginning the casebook with materials on remedies.' 51 Similarly, there is no edito- rial explanation or discussion of the authors' use of the case/countercase organizational technique. 152 In addition, the edi- tors usually do not express their own views regarding the justice of the decisions, the complexity of cases, or the ethical conduct of law- yers and parties. Disembodied hands seem to have dropped the cases into doctrinal categories.

The kinds of questions the editors pose following cases illustrate the uncommitted and uncontroversial aspect of the book's neutral- ity. These questions are typically composed by modestly changing one or more facts of the preceding case, or by asking how the Uni- form Commercial Code would affect an outcome.' 55 While readers undoubtedly can benefit from addressing these kinds of questions, they would also benefit from addressing more provocative and con- troversial questions, such as those that would challenge the fairness or the coherence of decisions or which would ask about the assump- tions underlying judicial attitudes. But these questions have been neglected in this casebook.

The casebook's dry, narrow, and unprovocative editorial com- mentary also illustrates the uncontroversial aspect of the book's neutrality. For example, the legal history materials in Dawson, Har- vey, andHenderson predominantly relate to the development of legal

150.See supra notes 93-101 and accompanying text.

151.The editors' preface states:

[w]e point again to the attention given remedies for breach of contract-still at center stage but now even nearer the footlights.... Because contract is as much a

social and economic concept as it is a set of rights and duties, we continue to believe that contract law is best understood, in function and societal impact, if it is ap- proached through a remedy-centered study. The underlying purposes of contract law (what it seeks to do, and how it goes about doing it) are revealed most clearly when problems are looked at from the perspective of taking care of harms or losses, or gains held unjustly.

J. DAwsoN, supra note 1, at xvii. I maintain that this oblique discussion provides little infor- mation to readers regarding the editors' theory of rules or contract doctrine. Cf. F. KESSLER, supra note 88, at 1-15 (casebook introduction discussing relationship between casebook organ- ization and editors' theory of social function of contract).

152.See generallyJ. DAwsoN, supra note 1, at xix (summarizing Table of Contents).

153.See, e.g., id. at 54,67, 74 (posing questions changing facts ofpreceding cases), and ict at 242 (asking how plaintiff in preceding case would have fared under U.C.C.).

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procedures, such as the changing forms of legal actions, 154 the merger of law and equity,' 55 and the shifting roles of juries and judges.' 5 6 Some of this material helps readers understand portions of decisions that otherwise would seem mystifying,' 5 7 while some of it undoubtedly evokes a "yeah, so?" response. 5 8s The material as a whole, suggests that legal history is technical rather than lively, and that legal history does not offer contract doctrine any larger per- spective. If the editors had included several other kinds of legal his- tory in the book, readers would have a much more engaged response to the materials.

For example, despite the contributions of one of the casebook ed- itors to legal realism,' 5 9 the editors do not include any intellectual legal history in the casebook. 160 Readers, therefore, do not have ac- cess in the casebook to the relationship between the way the courts decided cases in the book and the changing perspectives in legal thought that both influenced the decisions and that the cases them- selves represent.' 6 ' Similarly, because the editors do not include economic and social history relating to the periods in which the cases were decided,' 6 2 the casebook gives readers no assistance in considering the effect of this material on the courts' decisions. 163 When the editors do depart from procedural history to include his- tory of substantive legal doctrine in the casebook, the material tends to describe the legislative or practical resolution of a contract is-

154.See iL-at 37-41 (discussing history of equity); idat 99-103 (discussing history of com- mon counts and restitution).

155.See id (discussing historical merger of law and equity).

156.See id at 6-8 (commenting on controls over jury verdicts).

157.See, e.g., idL at 146-50 (commenting on legal formalities as introduction to chapter on consideration).

158.See, e.g., id at 6-8 (commenting on controls over jury verdicts).

159.See Dawson, Economic Duress-An Essayin Perspective,45 MICH.L. REv. 253, 254 (1947). See generally G. WHrrE, PArrERNS OF AMERICAN LEGAL THOUGHT 116-32, 136-44 (1978) (describing development of Realist movement).

160.Llewellyn's excerpt onjudicial style is an exception to this statement. The excerpt, however, is quite slight. J. DAwsON, supranote 1, at 110-11 (excerpting K. LLEWELLYN, supra note 98, at 157-58).

161.Kessler and Gilmore's casebook gives readers some sense of intellectual legal history by their extensive introduction, "Contract as a Principle of Order," and by their chapter and section titles, which indicate the relationship between the cases and moral, social, and political themes. F. KaSSLER, supranote 88, at 1-15. (Titles include such headings as "From Status to Contract," "Formalism in Our Law ofContracts," and "Mistake: Security of Transactions and the Objective Theory of Contracts").

162.There are a few, very narrow exceptions to thise assertion. See, e.g., J. DAwsoN, supra note 1, at 56 (giving brief, apolitical description of price fixing and union organizing efforts during time of fluctuating coal prices, referred to in Missouri Furnace Co. v. Cochran, 8 F. 463 (W.D. Pa. 1881), excerpted inJ.DAwsoN, supra note 1, at 54);J. DAwsON, supra note 1, at 167-68 (noting starvation conditions in Greece after Nazi occupation, as historical setting for Batsakis v. Demotsis, 236 S.W.2d 673 (Tex. Civ. App. 1949), excerpted inJ. DAwsoN, supra note 1, at 165).

163.Cf M. Horwrrz, THE TwANSFOMATION OF AMERICAN LAW 1780-1860 (1977).

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sue.164 The editors do not present material focusing on current, heated disputes about contract doctrine. Thus, for example, although there are several cases in the casebook involving employ- ees' claims of unfair discharge, 165 the editors scatter these cases throughout the casebook and do not refer to the uncertain status of these claims or the stimulating doctrinal debate they have engendered. 166

The primary effect of the authoritarian neutrality I have described thus far is to mislead readers about the kind of questions one can ask about cases and about the kind of legal history that might be relevant to consider in studying contracts. This casebook, like many others, discourages readers from developing ethical, social, and moral opinions on legal issues. Insofar as these questions and opin- ions seem feminine, because they involve attachment, compassion, and emotion, repressing these questions encourages readers to re- press the feminine characteristics within themselves. This promotes a narrow concept of professional conduct, and it also devalues au- thentic self-development.

Although the editorial style and noncase material that the editors have written or selected for the book are enough, in my judgment, to give this casebook the authoritarian neutrality that makes it seem male, The Feminist Reader or the Reader with a Chip on her Shoul- der might also argue that by omitting legal issues of current interest to women the editors have selected cases that contribute to the casebook's "maleness." The Individualist or the Civil Libertarian Readers would staunchly contest this position. They would claim that the cases in this casebook are not gendered. Not only do the editors include "women's" issues in the casebook (there are cases

164.See, e.g., J. DAWSON, supra note 1, at 249-54 (description of congressional attempts to regulate automobile manufacturers' franchise transactions with dealers, following two cases involving claims of unjust termination of franchises, Bushwick-Decatur Motors, Inc. v. Ford Motor Co., 116 F.2d 675 (2d Cir. 1940), excerpted in J. DAwsoN, supra note 1, at 243, and Corenswet, Inc. v. Amana Refrigeration, Inc., 594 F.2d 129 (5th Cir. 1979), excerpted inJ.DAW- SON, supra note 1, at 247). See also iaL at 852-53 (comment on firm offers that praises construc- tion industry practices regarding revocability of subcontractors' bids, following three cases in which issue was litigated,James Baird Co. v. Gimbel Bros., Inc., 64 F.2d 344 (2d Cir. 1933), excerpted inJ. DAwsoN, supra note 1, at 342; Drennan v. Star Paving Co., 51 Cal. 2d 409, 383 P.2d 757 (1958), excerpted inJ. DAwsoN, supra note 1, at 346; E. A. Coronis Associates v. M. Gordon Construction Co., 90 NJ. Super. 69, 216 A.2d 246 (1966), excerpted in J. DAwsoN, supra note 1, at 350).

165.See, eg., Forrer v. Sears, Roebuck & Co., 36 Wis. 2d 388, 153 N.W.2d 587 (1967), exceptedinJ. DAwsON, supra note 1,at 214; Goodman v. Dicker, 169 F.2d 684 (D.C. Cir. 1948), excerpted inJ. DAWSON, supra note 1, at 217; Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 427 A.2d 385 (1980), excerpted inJ.DAwsoN, supra note 1, at 254.

166.See generally Note, ProtectingEmployeesat WillAgainst WrongfulDischarge:The PublicPolicy Exception, 96 HARv. L. Ray. 1931, 1931 n.3 (1983) (citing extensive commentary on unfair employees' discharge that was available before casebook's fourth edition was published).

1114	THE AMERICAN UNIVERsTY LAW REvIEw [Vol. 34:1065

A.Shirley MacLaine and the Mitigation of DamagesRule: Re-Uniting Language and Experience in Legal Doctrine

Parkerv. Twentieth Century-Fox Film Corp.1 68 involves a breach of contract claim against a motion picture studio by a "well-known" actress, whom the editors identify as Shirley MacLaine.1 69 Just before production was to begin on a musical entitled "Bloomer Girl," the studio cancelled its contract to pay MacLaine $750,000 to

star in the film, offering her instead the role of leading actress in a "4western type" movie, "Big Country, Big Man." MacLaine did not

accept the offer. The studio opposed her motion for summary judg- ment on the grounds that her claim for lost wages in "Bloomer Girl" should be reduced by the wages she could have earned in "Big Country, Big Man." This defense is based on the general rule of mitigation of damages, elaborated for casebook readers in the pre- ceding major case: a party injured by breach of contract cannot re- cover compensation for any damages she could have avoided (or mitigated). 170 The doctrinal issue in Parker involves an employee's obligation to avoid damages after her employer has breached their employment agreement: was Shirley MacLaine's claim for compen- sation foreclosed because of the opportunity, which she refused, to avoid her loss by worling in "Big Country, Big Man?"

In deciding the case for Shirley MacLaine, the court in Parkerre- lied on the fact that, under the mitigation rule, an employee need not avoid damages by accepting "employment of a diferent or inferior kind .... "171 The majority concluded that the" 'Big Country' lead

was ... both different and inferior:"

The mere circumstance that "Bloomer Girl" was to be a musical review calling upon plaintiff's talents as a dancer as well as an ac- tress, and was to be produced in the City of Los Angeles, whereas "Big Country" was a straight dramatic role in a "Western Type" story taking place in an opal mine in Australia, demonstrates the difference in kind between the two employments; the female lead as a dramatic actress in a western style motion picture can by no

168.3 Cal. 3d 176, 474 P.2d 689, 89 Cal. Rptr. 737 (1970), excerpted inJ. DAWSON, supra note 1, at 46.

169.J. DAwsoN, supra note 1, at 46 n. *.Maclaine won an academy award in 1984 for her role in the film "Terms of Endearment."

170.In Rockingham County v. Luten Bridge Co., 35 F.2d 301 (4th Cir. 1929), excerpted in J. DAwsoN, supra note 1,at 41, a contractor was denied his claim for the full contract price of an agreement to build a bridge. The plaintiff had completed the bridge after the defendant had repudiated the contract. Id at 303, excerpted inJ. DAWSON, supra note 1, at 41, 42.

171.J. DAwsoN, supra note 1, at 49 (emphasis added). The Restatementof Contractschooses different wording, stating that "damages are not recoverable for loss that the injured party could have avoided without undue risk, burden or humiliation." REsrATEMENT (SECOND) OF CoNrTRAcTs § 350(1) (1979).

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stretch of imagination be considered the equivalent of or substan- tially similar to the lead in a song and dance production.

Additionally, the substitute "Big Country" offer proposed to

eliminate or impair the director and screenplay approvals ac- corded to plaintiff under the original "Bloomer Girl" contract 1 72

.. and thus constituted an offer of inferior employment. No ex- pertise orjudicial notice is required in order to hold that the dep- rivation or infringement of an employee's rights held under an original employment contract converts the available "other em- ployment" relied upon by the employer to mitigate damages, into inferior employment which the employee need not seek or

accept. 173

The dissenting judge, however, charged that the majority relied on a "superficial listing of differences" between the films, asserting that:

[iut is not intuitively obvious.. .that the leading female role in a dramatic motion picture is a radically different endeavor from the leading female role in a musical comedy film. Nor is it plain to me that the rather qualified rights of director and screenplay approval contained in the first contract are highly significant matters either in the entertainment industry in general or to this plaintiff in par- ticular. Certainly, none of the declarations introduced by the plaintiff in support of her motion shed any light on these issues. Nor do they attempt to explain why she declined the offer of star- ring in "Big Country, Big Man." 17 4

By calling attention to the majority opinion's conclusory application of the "different or inferior" qualification, the dissenting opinion encourages the casebook reader to feel uncertain about how to use

the mitigation rule in the employment context. It will seem unjust, to some readers, that Shirley MacLaine is apparently going to get $750,000, after this decision, for doing nothing. The mitigation rule seems to lose all of its muscle as a result of this "different or inferior" qualification. Would MacLaine have been entitled to dam- ages if she had refused the lead in "Annie Hall," because that ex- tremely successful film is not a musical? Would she have been

172.In offering MacLaine "Big Country," the studio asserted there was insufficient time to negotiate with her regarding choice of director and regarding the screenplay. The studio reminded her that she had "already expressed an interest in... 'Big Country, Big Man,' "and

although she could not have the same approval rights she would have had in "Bloomer Girl" the studio did promise to consult with her regarding the choice of director for photoplay and regarding screenplay revisions. Parker v. Twentieth Century-Fox Film Corp., 3 Cal. 3d 176,

180 n.2, 474 P.2d 689, 691 n.2, 89 Cal. Rptr. 737,739 n.2 (1970), excerpted inJ. DAwsoN, supra note 1, at 46, 47-48 n.2.

173.Id at 183-84,474 P.2d at 693-94, 89 Cal. Rptr. at 741-42, excerptedinJ. DAwsoN, supra note 1,at 46, 50.

174.1& at 188, 474 P.2d at 697, 89 Cal. Rptr. at 745 (Sullivan, Acting CJ., dissenting), excerpted in J. DAwsoN, supra note 1,at 46, 52-53.

1116	THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 34:1065

denied damages if she had turned down "Springtime for Hitler"? 175 How can you tell?

I believe The Feminist Reader and the Reader with a Chip on her Shoulder (as well as other readers who are familiar with feminist social history) might find the majority's application of the "different or inferior" standard much less mysterious than other readers. Their views would be based on their acquaintance either with Ame- lia Bloomer, a mid-nineteenth century feminist, suffragist, and aboli- tionist, or with "bloomers," the loose trousers that some women wore under a short skirt, without hoops, multiple petticoats, or re- stricting underwear, in the early 1850s. (Bloomer, whose magazine, The Lily, was the first American magazine published by and for wo- men, publicized and stirred enthusiasm among some women for the trousers, or pantelettes, as they were sometimes known, and they came to be called after her.) 176 These readers might have the intui- tion, as I did in reading the Parkercase, that a film entitled "Bloomer Girl" was related in some way to the radical effort feminists in the last century made to achieve more freedom of movement and con- trol over what they wore by reforming their dress. Moreover, simply because Shirley MacLaine is a woman, these readers might assume that the role in "Bloomer Girl" had personal significance for the actress;' 77 even if the film treated women's issues in the light- hearted fashion typical of musical comedy, it would still link the ac- tress with events that are historically significant to other women. 78 "Bloomer Girl" would seem different, from this perspective, not

175."Springtime for Hider" was the musical comedy created within the film "The Produ- cers" solely for the purpose of obtaining a financial loss for its originators. The producers designed the musical hoping it would be a commercial disaster. See N.Y. Times, Mar. 19, 1968, at 88, col. I (reviewing "The Producers").

176.See Fatout, Amelia Bloomer and Bloomerism, 36 THE NEw YoRK HIsT. Soc'y 9. 361, 365 (1952). For recent histories of other prominent feminists that contain references to Amelia Bloomer, see L. BANNER, EmZABErH CADY STANrON, A RADICAL FOR WOMEN'S RIGHTS 35

(1980); E. GRIFFITH, IN HER Ovm RIrHT. THE LIFE OF EuzABErH CADY STANTON 63-64 (1984);

EuzABETH CADY STANTON, SUSAN B. ANTHONY, CORRESPONDENCE, WRrITNGS, SPEECHES 15 (E.

DuBois ed. 1981).

177.Although the actress's decision to reject "Big Country, Big Man" may not have been politically motivated, feminists who read the case now may identify MacLaine as a feminist and

they are likely to assume that her decision more than twenty years ago was politically moti- vated. MacLaine has written about her longstanding political activism, as well as her other interests, in several bestselling autobiographical books. See, e.g., S. MACLAINE, Our ON A LIMB (1983); and S. MACLAINE, You CAN GEFTHERE FROM HERE (1975). MacLaine has been a Civil Rights activist, a vigorous opponent of the Vietnam War, and a delegate to the Democratic National Convention. J. SPADA, SHIRLEY AND WARREN 210 (1985). In 1984, when she received an honorary degree from Hunter College, she was praised for her "support of those who champion the victims of discrimination, particularly women." Id.

178.Indeed, while the spirited campaign for bloomers was ultimately unsuccessful in re- forming women's dress of the period, it contained themes familiar to modem feminists- bloomer advocates sought to free themselves from the confines of fashion constraints which they blamed men for imposing on them. Cf. S. BROWNMILLER, FEMININrTY 77-102 (1984); K.

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only from a western but from other musical comedies, because of its political overtones.

In contrast with their favorable attitudes toward "Bloomer Girl," The Feminist Reader as well as the Reader with a Chip on her Shoulder would probably assume that a movie entitled "Big Coun- try, Big Man" would offer a leading actress the inferior kind of lead- ing role westerns have typically offered women. Like Miss Kitty in "Gunsmoke," a woman in a western is usually very much subordinated to the main focus of such films-the cowboy-hero. Be- cause feminist readers oppose the subordination of women, they are likely to believe that, assuming "Big Man" portrayed women as men's sidekicks, it would be "inferior" to "Bloomer Girl," where women were probably shown leading their sisters to fight for control over their own bodies. Thus, the readers' gender-related presump- tions regarding the political overtones of "Big Country, Big Man" would affect their opinion of why the film would seem "different or inferior" to "Bloomer Girl."

Although these readers might not know whether "Bloomer Girl" had feminist themes179 or whether "Big Country, Big Man" por-

CHERNIN, THE OBSESSION: REFLECTIONS ON THE TYANNY OF SLENDERNESS (1981); Note, Gen-

der-Specijic ClothingRegulation:A Study in Patriarchy,5 HARv. WOMEN'S LJ. 73 (1982).

179.It turns out that "Bloomer Girl" did have feminist themes, as Charles Knapp has pointed out in his contracts casebook. C. KNAPP, supra note 55, at 1118. My own intuitions about "Bloomer Girl" were confirmed by readingJohn Gregory Dunne's review of a book by "Danny Santiago" in the New York Review of Books last year. Dunne, The Secret of Danny Santiago (Book Review), 31 N.Y. REv. OF BooKs 17 (Aug. 16, 1984) (reviewing D. SANTIAGO, FAMous ALL OVER TOWN (1984)). "Danny Santiago" was revealed in that review to be the norn

deplune of DanJames, a Hollywood writer who was blacklisted during the fifties because of his past membership in the Communist Party. Dunne mentioned that the Broadway musical "Bloomer Girl" was based on a play thatJames and his wife Lilith co-authored. The inspira- tion for the James' play stemmed from "a Party-endorsed workshop on women's rights." Id. at 20. Professor Stewart Macaulay, of the University of Wisconsin, who has extensively researched the production and reception of the Broadway "Bloomer Girl," has kindly shared with me some of the fascinating details he has found about the Broadway play. A major char- acter in the play was based on Amelia Bloomer, who is portrayed as having a brother who manufactures hoop skirts. One of his daughters refuses to marry a hoop salesman, as her five sisters have done before her, and joins her aunt in abolition activities. In the song "It was Good Enough for Grandma," lyricist E.Y. Harburg dashes offseveral bitingly feminist stanzas, including the verses:

When Grandma was a lassie,

That tyrant known as man

Thought a woman's place

Was just the space

Around a frying pan.

We won the revolution

In seventeen-seventy-six...

Who says it's nix

For us to mix

Our sex with politicsl

We've bigger seas to swim in

1118 THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 34:1065

trayed women according to the usual demeaning western stereo- type,180 because of their skepticism about women's roles in westerns and their intuitions regarding "Bloomer Girl's" feminist themes, they might understand MacLaine's rejection of the "Big Country, Big Man" role in terms of their own efforts to reconcile their politics with their careers. These readers would be able to ground the lan- guage of the "different or inferior" qualification in their own lives.' 8 ' They might assume that MacLaine not only sought to re- fuse a role that would be demeaning to her as a woman, but that she also wanted to avoid contributing to the oppressed images of wo- men in popular culture. Rather than thinking that Shirley MacLaine is being paid to do nothing in Parker,and that the "different or infer- ior" qualification to the mitigation rule was unfairly applied, their attitude toward the two films could enable them to infer an ascer- tainable but complicated standard for determining when the "differ- ent or inferior" qualification should be applied in employment cases. That is, they would assume that Parker demonstrates that an employee's serious and recognized personal goals should be respected and protected when they are connected to a concern that is respected and acknowledged by others. Under this interpretation, some degree of mitigation can be required (mitigation does not lose all of its muscle in Parker), and yet a wrongly discharged employee would not have to take just any substitute employment. Money

And bigger worlds to slice.

Oh, Sisters, are we women

Or mice?

L. ENGEL, THEIR WORDS ARE Music 75 (1975). Descriptions of "Bloomer Girl" can be found in A. LAUFE, BROADWAY'S GREATESr MUSICALS 77-79 (1970) and D. EwzN, Naw COMPLrrE Boox OF THE AMERICAN MUSICAL THEATER 11-12 (1958).

180.The court in Parkerstates that "Big Country" was a .'western type' story taking place in an opal mine in Australia." Parker v. Twentieth Century-Fox Film Corp., 8 Cal. 3d 176, 183, 474 P.2d 689; 693-94, 89 Cal. Rptr. 737, 741-42 (1970), excerpted inJ. DAwsoN, supra note 1, at 46, 50. Marlene Lasky, library assistant with the Academy of Motion Picture Arts and Sciences, stated in a telephone interview that although Sean Connery and Diane Cilento were signed to play the lead roles, the movie was probably never made. Telephone interview with Marlene Lasky, Library Assistant, Academy of Motion Picture Arts and Sciences (July 22, 1985). Ms. Lasky thinks the film was about the settlement of Australia.

181.These readers might also be able to find support for their views in other language of the majority opinion. By describing the Big Man role as a 'ftmal lead as a dramatic actress in a western style motion picture," the majority may be indicating their awareness that women are traditionally given subordinate roles in western films. Parker v. Twentieth Century-Fox Film Corp., 3 Cal. 3d 176, 184, 474 P.2d 689, 694, 89 Cal. Rptr. 737, 742 (1970), excerpted inJ. DAwsoN, supra note 1, at 46, 50 (emphasis added). In contrast, the dissent describes the "Big Country, Big Man" role as "the leading female role in a dramatic motion picture." Id. at 189, 474 P.2d at 697, 89 Cal. Rptr. at 745, excerpted inJ. DAwsoN, supranote 1, at 46, 52. By not referring to the "dramatic motion picture" as a "western," the dissent seems insensitive to the issue of female subordination in westerns, thus suggesting that attitudes toward the impor- tance of sex roles may explain the silent rationale of the majority opinion, as well as the distinctions between the two opinions in the case. Id

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FEMINIST ANALYSIS OF A CASEBOOK

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would not be the only test for determining whetherjobs are compa- rable, and yet other employment objectives would require social as well as personal significance in order to be protected under the "dif- ferent or inferior" qualification.

The interpretation of Parker generated by feminist attitudes and information about the social history related to the case offers read- ers useful guidance in applying the "different or inferior" qualifica- tion to other situations. This interpretation also allows readers who identify with Shirley MacLaine (because she is a woman) to attribute dignity to her conduct. However, readers of Dawson, Harvey, and Henderson will have to struggle to interpret Parker in the manner I have described. Inexplicably, the editors omit material that would confirm readers' intuitions that the social context and political sig- nificance of the films might explain the application of the "different

or inferior" qualification in Parker.8 2 Dawson, Harvey, and Hender-

1

son thus subtly deter readers who are familiar with nineteenth cen- tury feminist activists and their work from utilizing their personal connections with the case to understand Parker; these readers may even be led to believe that social context and politics are not legiti- mate interpretive tools. Although readers' intuitions about the Parkercase may in fact explain the otherwise baffling result of this decision, the casebook does not encourage them to draw on those intuitions. It discourages-in the context of these opinions-the sensitivity to what is influential but not said, a sensitivity that women

8 3

have often found to be a source of strength. -

The negative pedagogical effect of omitting information about the feminist themes in "Bloomer Girl" extends to other readers too. Most casebook readers are unlikely to know about Amelia Bloomer or the nineteenth century feminist dress reform effort. Had Daw- son, Harvey, and Henderson included the information about "Bloomer Girl," which Charles Knapp provides in his casebook, then feminist attitudes toward the subordination of women in wes- terns and the importance of dress reform could have been tapped in other readers to develop the complicated, contextualized interpreta-

182.Well before the fourth edition of Dawson, Harvey, and Henderson was published in 1982, Charles Knapp informed his readers that MacLaine had been connected to feminist causes and that one of the characters in "Bloomer Girl" was "AmeliaJenks ('Dolly') Bloomer

... a leading advocate ofwomen's rights in the United States during the nineteenth century." C. KNAPP, supra note 55, at 1118 n.l. It is hard to believe that Dawson, Harvey, and Hender- son were unaware of this casebook scholarship.

183.See Homans, "Her Very Own How'" The Ambiguities of Representationin Recent lWomen's Fiction, 9 SIGNS:J. OF WOMEN IN CULTURE AND SocInrW 186 (1985) (describing views of French and American feminist literary critics regarding relationship between women's experiences and their interpretations and use of language).

1122 THE AMERICAN UNIVERSrIy LAW REVIEW [Vol. 34:1065

cation to the general rule, that one need not avoid damages by ac- cepting work of a "different or inferior" kind, favors the individualist pole. Without the qualification, the mitigation rule would swallow an employee's contractual freedom-her employer could fire her with little risk of fiscal responsibility. Thus Parker,like all mitigation cases, presents the question of how to resolve in a particular situation a fundamental conflict between the individual and communal claims mediated by the mitigation rule and the "dif- ferent or inferior" qualification.

To some readers, the conclusory application of the "different or inferior" qualification by the majority in Parkerwill seem like appro- priate, if unreasoned deference to individualism. Searching for some rational explanation of the majority's decision, they will con- clude that the directorial rights MacLaine would have lost in "Big Country, Big Man," in conjunction with the lost opportunity to ad- vance her musical comedy expertise, wouldjustify the application of the "different or inferior" qualification in this case. These readers will agree that MacLaine's autonomy deserved more protection than the general social good that would have come from not letting her off the working hook the rest of us are on.

This interpretation of the case will seem gendered to some read- ers because the individualism/community duality I have described is generally understood to be gendered. Individualism and autonomy are commonly associated with men while altruism and community are generally linked with women, just as, more concretely, men are usually expected to pursue their individualistic careers single- mindedly while women are expected to subordinate other career objectives to care for their families or to participate in community activities. 187 Readers who justify the majority's decision on the basis of an autonomy rationale are also likely to be influenced in this

of fairness and sociallyresponsible behavior which are fundamental to ourjurisprudence... it is a rule requiring reasonable conduct in commercial affairs." Parker v. Twentieth Century-Fox Film Corp., 3 Cal. 3d 176, 183, 474 P.2d 689, 694, 89 Cal. Rptr. 737, 742 (1970) (Sullivan, Acting C.J., dissenting), excerpted in J. DAWSON, supra note 1, at 46, 50. The basic rule "mini- mizes the unnecessarypersonaland social(e.g., nonproductiveuse oflabor, litigation) costs of contrac- tual failure." Id. at 186 n.5, 474 P.2d at 693 n.5, 89 Cal. Rptr. at 744 n.5, excerpted in J. DAwsoN, supra note 1, at 46, 52 n.3 (emphasis added).

187.Indeed, some readers may think the decision in Parkeris irrational because the sex of the victorious plaintiff is inconsistent with the gender of the legal rationale supporting the decision, while other readers will be pleased that the decision reverses the usual assumption that men's problems will be resolved with "male" rules and women's with "female" rules. The kind of analysis of the sexualization of law presented here is developed in Fran Olsen's paper "The Sex of Law." Olsen, supra note 167. While asserting that dualization occurs, Ol-

sen also criticizes this process, arguing that each pole of a duality is constitutive of the other, rather than separate and different from the other. See generally Kennedy, Form andSubstance in PrivateLaw Adjudication, 89 HARv. L. REv. 1685 (1976) (describing fundamental conflict be- tween individualism and altruism in common law and in political and economic discourse).

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reading by gender-related ideas about MacLaine and what her objectives were regarding "Bloomer Girl." Thus, some of these readers may approve of MacLaine's efforts to stand up to the stu- dio-to "act like a man"-and the studio be damned, while others may approve of the decision because MacLaine was seeking to pro- tect directorial and approval privileges which these readers under- stand as participatory and "feminine."

Whatever the particular rationale underlying an interpretation of Parkerwhich justifies the majority's decision, it offers readers very little guidance for arguing future employment cases involving a mit- igation issue. The majority's conclusory opinion provides readers almost no guidance in how to make an individualist or "masculine" argument. As Judge Sullivan points out in his dissenting opinion, "there will always be differences" between two jobs, and "a superfi- cial listing of differences with no attempt to assess their significance may subvert a valuable legal doctrine." 18 8

Because this preceding reading is so unsatisfactory, I believe most readers will be inclined to assume that the majority opinion in the Parker decision is an irrational capitulation to individualism. Gen- der-related ideas may also contribute to this conclusion. As I have stated in an earlier discussion, one way the insignificance of a deci- sion can be suggested to readers is through the organization of the casebook.18 9 Because the editors pair Parker (the first case in the book in which a woman is a party) with a case setting forth the gen- eral obligation of mitigation, readers who link the traditionally infer- ior status of women to the countercase position of the Parker decision will be encouraged to consider the Parkerrule subordinate to the principal mitigation obligation.

MacLaine's photograph will encourage other readers to treat the Parker case skeptically. Because the photograph plays on gender- related ideas about female sexuality, these readers will be reminded that men have historically been able to manage and control the power such a picture suggests in its subject. 190 These readers will be encouraged to believe that the Parkerrule can be managed and con- trolled, just as women have been.

Finally, still other readers will be encouraged to dismiss Parker's

188.Parker v. Twentieth Century-Fox Film Corp., 3 Cal. 3d 176, 186-89, 474 P.2d 689, 696-97, 89 Cal. Rptr. 737, 744-45 (1970), excerpted inJ.DAwsoN, supra note 1, at 46, 52.

189.See supra notes 108-121 and accompanying text.

190.See, eg., R. ScHoLEs, Uncoding Mama The Female Body as Text, SEMITICS AND INTEPR- PRmATiON 127 (1982) (describing restrictions on female sexuality achieved through particular forms of discourse); see also Vance, PleasureandDanger:Toward a PoliticsofSexuality, in PLEASURE AND DANGER,EXPLORING FEMALE SEXUALITY 1-29 (C. Vance ed. 1984) (describing relationship between "good" female behavior and protection against male violence).

1124 THE AmmRICAN UNiVERsrrz LAw REVIEW [Vol. 34:1065

significance because of the customary disposition in our culture to devalue any kind of women's work. These readers may be dubious at the outset of the opinion about whether acting is real work, and MacLaine's sex19 1 will foster their belief that real employees doing real work will not be treated like MacLaine.1 92

Each of these gender-related ideas legitimates a reader's conclu- sion that Parkeris incorrectly decided, or insignificant, but the ideas would not help such a reader elaborate altruistic arguments for a different result. Thus, like the earlier interpretation supporting the majority's decision, the dismissive reading of Parker disserves read- ers pedagogically. It fails to offer them guidance for arguing and resolving a mitigation conflict. In addition, because Parker is the first major case in the book in which a woman is one of the parties, the dismissive reading is likely to affect the way gender-conscious readers feel about women.

The dismissive reading of the case tempts instructors and stu- dents to ridicule MacLaine, to imagine her as an indulged starlet lying around eating chocolates, while the defendants, hard working studio types, struggle to manage their business efficiently despite her arbitrary whims. Some readers may be proud that MacLaine is a woman who manages to "beat the system" by getting paid for doing nothing, but other readers may internalize any disrespect that they think the opinion generates for MacLaine. If these readers believe that women are morally superior to men (and some readers will hold this opinion), they will be shamed if MacLaine, as a woman plaintiff, seems successful because she cleverly manipulated the legal system. In contrast, the misogynist feelings of readers who are undisposed to favor women will be intensified by any derogation of MacLaine; women are just as bad as these readers have always sup- posed. A distinct advantage of the Parkerreading based on feminist attitudes toward the social history implicated by the case is that this interpretation will challenge the effect dismissive readings would have on readers; it will encourage feminist as well as nonfeminist readers to rethink their ideas about women.

I am not immune to the diversion Parker offers from standard

191.Readers might also disparage the value ofa male actor's work, but that attitude too would probably be affected by the gender-related notion that a realman wouldn't do that kind

of work.

192.A footnote in the dissenting opinion, which informs readers that the mitigation rule "may have had its origin in the bourgeois fear of resubmergence in lower economic classes," may influence readers to adopt the kind of class bias analysis suggested here as an explanation for MacLaine's victory in the case. Parker v. Twentieth Century-Fox Film Corp., 3 Cal. 3d 176, 185 n. 2, 474 P.2d 689, 695 n. 2, 89 Cal. Rptr. 737, 743 n.2 (1970) (Sullivan, Acting CJ., dissenting), excerpted inJ. DAwsoN, supra note 1, at 46, 51 n.2.

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they had not actually read or agreed to the terms. The court in Al- lied rejected Mrs. Bratton's argument; it disregarded her ignorance of the restrictive terms in the carrier's bill of lading and held that her signature was sufficient to bind her to the agreement. In con- trast, the court held that Mrs. McKnab's signature did not bind her. The carrier's agent had advised Mrs. McKnab incorrectly that the agreement gave her no choice regarding the amount of insurance coverage available to her. This misstatement, the court held, re- lieved Mrs. McKnab of the presumption of assent that her signature on the agreement would otherwise have warranted. By granting re- lief to Mrs. McKnab, Allied indicates to readers that standardized agreements need not always be binding. In denying relief to Mrs. Bratton, however, the court in Allied demonstrates that standardized agreements are often enforceable.

Allied is the only case in this unit in which a court enforces a stan- dardized agreement against a party.19 7 Therefore, as a result of its introductory position in the unit and its unique support of a stan- dard form contract, Allied has a substantial impact on readers' views about standard form contract doctrine. I believe that because read- ers' ideas regarding gender affect their interpretation ofAllied, these ideas influence their subsequent approach to standardized contract interpretation. In the part that follows, I will discuss two different interpretations ofAllied that demonstrate these claims about the sig- nificance of gender. The first interpretation, which I call a tradi- tional reading of the case, is an elaboration of the rationale the court presents in support of its decision. Readers who interpret Allied in the traditional manner are unlikely to acknowledge that gender-re- lated ideas are a factor in their reading of the case. Yet, as I will show, gender-related ideas are implicated in this interpretation. I label the second interpretation a feminist reading, because gender- related ideas are overtly recognized in this interpretation. In addi- tion, this reading is characterized by its opposition to Allied and to the traditional interpretation of the decision.

The traditional interpretation of Allied leads to a conclusion that, by and large, standardized contracts are legitimate, fair, and benign.

197.In Wdsz, Henningsen, andEllsworthDobb, the challenged provisions were not enforced. Ellsworth Dobbs, Inc. v.Johnson, 50 N.J. 528, 236 A.2d 843, 858 (1967), excerpted inJ. DAw- soN, supra note I, at 469, 474; Henningsen v. Bloomfield Motors, Inc., 32 NJ. 358, 408, 417, 461 A.2d 69, 97, 102 (1960), excerpted inJ. DAwsom, supra note 1, at 461,467; Weisz v. Parke- Bernet Galleries, Inc., 67 Misc. 2d 1077, 1082-84, 325 N.Y.S.2d 576, 582-83 (N.Y. Civ. Ct. 1971), reu'd,77 Misc. 2d 80,351 N.Y.S.2d 911 (N.Y. App. Term, 1974), excerptedinJ. DAWSON, supra note 1, at 453. In Woodburn the case was remanded to determine if the plaintiff had an opportunity to see the restrictive provisions. Woodburn v. Northwestern Bell Tel. Co., 275 N.W.2d 403 (Iowa 1979), excerpted inJ.DAWSoN, supra note 1, at 476.

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The contrast between the court's treatment of Mrs. McKnab and Mrs. Bratton also conveys the benign nature of standardized agree- ments to traditional readers. The rationale that locked Mrs. Bratton into her agreement protected Mrs. McKnab. Although the court seemed ready to hold Mrs. McKnab responsible for her signature-

she too "knew" she was "signing a contract" 20 3

-ultimately the court is persuaded that the conduct of the carrier's agent "pre- vent[ed] [her] from exercising her right to choose adequate cover- age." 2G The court referred to prior conversations between Mrs. McKnab and the agent in which she had alerted him to her desires for maximum insurance coverage.2 05 Readers can infer from this that the agent's misstatement to Mrs. McKnab was deliberately de- ceptive. The agent's statement seems like a concrete obstacle which he placed between Mrs. McKnab and the bill of lading; his words seem to have wrested control of the situation from Mrs. McKnab. Because the court relieved Mrs. McKnab of liability for her signature on the grounds that the agent prevented her from assenting freely to the standardized form, the Allied decision assures readers that the law of standardized agreements can be flexible and particularized. It will protect someone like Mrs. McKnab who actively seeks to pro- tect herself, but it will not protect someone who is negligently pas- sive, like Mrs. Bratton. Unlike Mrs. McKnab, Mrs. Bratton did nothing concrete to indicate to her agent that his silence about the agreement would deceive her. An active/passive distinction be- tween the conduct of both the two women and the two agents, therefore, provides readers an explanation for the different treat- ment the women receive. More importantly, Mrs. McKnab's situa- tion indicates that in discreet, predictable, and exceptional circumstances, courts will not enforce standardized agreements.

The form of legal analysis that the court utilized in Allied also le- gitimates, for traditional readers, the legal doctrine dealing with standardized agreements. Because the court judged the enforce- ability of Mrs. Bratton's agreement by her signature, rather than by an examination of her actual knowledge of the contents of the stan- dard form, the Allied court seems scrupulously neutral and objective. Unlike later cases in the standardized agreement unit, the court in Allied did not inquire into inequality of bargaining power to deter-

203.IR. at 348, excerpted inJ. DAWSON, supra note 1, at 448,451.

204.Id

205."Mrs. McKnab's situation is different [from Mrs. Bratton's] ... for she sought infor- mation [and] was misled by the carrier's agent as to available coverage." Id at 348, excerptedin J.DAwsON, supranote 1, at 448, 451. In addition, the court cites portions of the trial transcript in which Mrs. McKnab testified about her conversation with the agent in which she inquired about insurance. Id at 347 nn. 5-6, excerptedinJ. DAwsoN, supra note 1,at 448,449-50 nn. 4-5.

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standardized contract cases209 invites readers to analogize the status of these cases to the status of women in society. Women are victim- ized by standardized agreements in these cases, just as they are so- cially and economically subordinated to men and their concerns. But they are also protected and cared for by the application of stan- dardized contract doctrine in the cases following Allied. Because the traditional reader may believe that standardized contract doctrine protects women more than people are generally protected in most aspects of life, this decision will have set this reader up to treat stan- dardized contracts as a normal, acceptable part of modern commer- cial life. He may discount the extent to which such contracts can lead individuals who use them to treat one another as if they are as standardized as their documents. Although all of the cases suc- ceeding Allied refuse to enforce standardized contract terms, these cases will be unlikely to change this reader's view that standardized contracts should, in a man's world, be generally enforceable-for the reasons explained in Allied.

The feminist reading ofAllied leads to a conclusion that standard- ized contracts can be oppressive and unfair-not just to women but to men as well. The same gender-related ideas that supported the traditional interpretation of the case will encourage feminist readers to oppose the benign reading of the decision. Thus, the exclusive presence of women as plaintiffs inAllied,210 and the disproportionate number of women in the standardized contract materials, will en- courage these readers to criticize the effect of gender on the law of standardized contracts.2 H Because standardized contracts appear

209.Recall that 39 of the 183 major cases in the casebook involve women parties, in con- trast to four out of five in this unit. See supranotes 22-23 and accompanying text.

210.It is interesting to note that other contracts casebooks also begin standard form con- tract units with cases involving women. See, e.g., O'Callaghan v. Waller & Beckwith Realty Co., 15 Ill. 2d 436, 155 N.E.2d 545 (1958), exerpted in E. FARNSWORTH, supra note 143, at 442; L'Estrange v. Graucob, Ltd., 2 K.B. 394 (1934), excerpted in F. KESSLER, supra note 88, at 1075.

211.The female reader with a Chip on her Shoulder, thinking, perhaps, in her paranoid mode, may be alerted to gender messages in theAllied decision by the quotation marks placed around the word "shipper" whenever it is used next to the names of the plaintiffs in the decision. While quotation marks could indicate someone else's words are being used, or while they might reflect the stylistic custom of using quotation marks to identify a person by his role, these plausible explanations for the use of quotation marks in Allied fail. There is nothing in the text to suggest the quotation marks note a quotation, and since the opinion writer does not use quotation marks when the word "carrier" is placed next to the defendant's

name, it is unlikely that the quotation marks around the word "shipper" represent customary usage. Moreover, the diligent reader who looked beyond the text would learn that other cases involving householders which are cited in the opinion do not use quotation marks when refer- ring to those parties as shippers. See Brannon v. Smith Dray Line & Storage Co., 456 F.2d 260 (6th Cir. 1972), noted in J. DAWSON, supra note 1, at 451-52; Chandler v. Aero Mayflower Transit Co., 374 F.2d 129 (4th Cir. 1967), noted inJ. DAWSON, supranote 1, at 451. Thus, it is likely, at least for some readers, that the quotation marks finction in Allied as a wink, convey- ing a message other than the ordinary meaning of the word they surround. While thejudge's

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to oppress mainly women, these readers will doubt whether the law

adequately protects women.

The gender-related insight regarding the "male" notion of self underlying the Allied rationale will provide feminist readers with a basis for developing a critique of the traditional analysis. Mrs. Brat- ton's idea of self apparently did not conform to the view, commonly linked with men, that individuals should allow the assertive, self- centered aspects of their personality to dominate their conduct. The self-reliant view of personhood underlying Allied permitted the court to believe that Mrs. Bratton was free to choose whether or not to agree to the carrier's form, that her agent did not "prevent" her from reading the bill of lading before she signed it. But footnotes to the opinion reveal that Mrs. Bratton testified at trial that she did not read the document because "the house was really cold; and the men were tired. They were in a hurry to get out." 212 Although some people might feel free in such a situation to ignore the workers' dis- comfort in order to pause to carefully study the moving company's documents, it is not surprising that Mrs. Bratton could not. Women are socialized to consider and value others' feelings above their own, and Mrs. Bratton simply acted like a woman in this situation. Because feminist readers are sympathetic to characteristics com- monly associated with women, the court's refusal to evaluate the substantive content of Mrs. Bratton's standardized contract will not seem like a neutral judgment to these readers but a preference for male rather than female personality traits. Rather than feeling criti- cal of Mrs. Bratton, feminist readers are likely to feel critical of the standardized documents and of standardized contract doctrine that fails to protect and value "feminine" personality traits.

As the feminist reading of Allied implies, the court's analysis in Allied might have been different if the court had valued feminine as well as masculine personality traits. The court could have consid- ered whether Mrs. Bratton's agent should have extended more sen- sitivity and compassion to her by understanding her sympathy for him and his men, by informing her about the insurance option, and by preventing her from signing without indicating the liability cover- age she wanted. The court could have considered whether the

wink in Allied might simply indicate sympathy for the parties, some readers are likely to as- sume instead that the judge is communicating his view that since these shippers are women, and probably only housewives or widows, they are not shippers as someone in the public world understands the term. If the traditional readers who are undisposed to favor women notice the quotation marks, they will be assured that they are correct in their opinion that Mrs. Bratton, rather than the carrier or the court, is at fault in AIied.

212.Allied Van Lines, Inc. v. Bratton, 351 So.2d 344, 346 n.3 (Fla. 1977), excerpted inJ. DAwsoN, supra note 1, at 448, 449 n.2.

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agent should have been as solicitous of Mrs. Bratton as she was of him.

Just as the traditional reader's interpretation of Allied could lead him to overlook the critique of standardized contract doctrine, the feminist reader's desire to criticize Allied may lead her to exaggerate the doctrinal significance of the succeeding cases. Because she be- lieves that the decision affecting Mrs. Bratton was wrong, the femi- nist reader will look for ways to overturn standardized agreements in the cases following Allied. Her lack of confidence in the Allied ra- tionale may prevent her from believing that standardized contracts are generally enforceable; she may believe that standardized con- tract doctrine is much more indeterminate and uncertain than it is. 2 15 She is likely to undervalue the Allied opinion as a useful source of persuasive arguments in favor of enforcing standardized agreements.

Although both the traditional and the feminist readers will be dis- advantaged in their later reading of the standardized contract mate- rial if they are not exposed to alternative readings of Allied, the feminist reading is less likely to receive attention. It is, therefore, particularly important to emphasize how this reading will benefit traditional readers. A feminist reading will help these readers see the legal issue in standardized contract situations not as a question of assent but as a question of power.214 The court in Allied utilized individual consent as the exclusive standard by which to evaluate contract enforceability. The court assumed, in justifying this stan- dard, that individuals could make informed judgments about the wisdom of contracts, that they could obtain full access to all the knowledge they need to exercise their consent wisely. Indeed, the Restatement section on standardized agreements, which Dawson, Harvey, and Henderson reproduce at the conclusion of the stan- dardized agreement unit, emphasizes the knowledge of the parties

as the critical factor for determining when such agreements should be enforced.21 5

213.See generally Rakoff, Contracts of Adhesion: An Essay in Reconstruction, 96 Hav. L. REV. 1173 (1983) (expansive description and criticism ofpast and current presumption that stan- dardized agreements are enforceable).

214.I am not referring here to the inequality of bargaining power argument which often surfaces in standardized agreement cases. See supra note 206 (referring to bargaining power);

see also Kennedy, supra note 72, at 614-20 (criticizing inequality of bargaining power as an "appropriate" test for determining enforceability of compulsory terms).

215.The emphasis on knowledge occurs in the third subsection ofsection 221. RESTATE-

MENT (SECOND) OF ComTRAcrs, § 221(3) (1979), reprintedinJ. DAWSON, supra note 1, at 479.

Section 211. Standardized Agreements

(1)Except as stated in Subsection (3), where a party to an agreement signs or other- wise manifests assent to a writing and has reason to believe that like writings are

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The feminist reader of Allied, who is sensitive to the subordinate status of women, would challenge this single minded focus on a con- sumer's obligation to inform herself about her contracts as mislead- ing. The focus on knowledge masks the power exercised in contractual dealings. Mrs. Bratton's agent exercised power over her through his physical control over her bill of lading and through his familiarity, derived from prior experience, with its contents. But be- cause he was a man, the agent also had power over Mrs. Bratton that she, as a woman, was socialized to acknowledge. By requiring Mrs. Bratton to assume full responsibility for informing herself about her bill of lading, the Allied court not only required her to challenge the agent's control over what she needed to know about the bill of lad- ing, but also to challenge the control he as a man had over her as a woman.

A feminist reading of Allied exposes these forms of power.21 6 Moreover, it reveals that traditional contract doctrine, by treating the parties as if they had an adversarial relationship, implicitly re- jects the more cooperative way in which many women have tradi- tionally experienced power and knowledge. The major form of power available to most women, given the kind of work they have done, has been the power to nurture and share. Women primarily occupied with family responsibilities have learned to live in the con- text of relationships that are trusting and interdependent. In this sphere, many women do not respect or adhere to the traditional male view of power as force, authority, and domination. Given the concern she stated she felt for the workers, Mrs. Bratton earned her own self-respect by recognizing the workers' discomfort and doing what she did to ease their situation. Had she been in the agent's position at that point, she would have spoken to the householder about the insurance option; she would have recognized the house- holder's need to know and would have helped her.

By analyzing Mrs. Bratton's claim as a question of whether she

regularly used to embody terms of agreements of the same type, he adopts the writ- ing as an integrated agreement with respect to the terms included in the writing.

(2)Such a writing is interpreted whenever reasonable is treating alike all those simi- larly situated without regard to their knowledge or understanding of the standard terms of the writing.

(3)Where the other party has reason to believe that the party manifesting such as- sent would not do so if he knew that the writing contained a particular term, the term is not part of the agreement.

Id. § 221, re Yinted inJ.DAwsoN, supra note 1, at 478-79. Prof. Rakoff argues that subsection three of the Restatement § 221 broadens traditional exceptions to the presumption that stan- dardized agreements are enforceable. Rakoff, supra note 213, at 1190-91.

216.Other analyses of standardized contracts also raise the issue of power in such con- tracts. See, eg., Kessler, supra note 198, at 640.

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IV. CONCLUDING DISCUSSION

I hope that my re-reading of Dawson, Harvey, andHendersonhas raised two questions for readers. I hope, first, that readers wonder how a feminist analysis of this casebook should affect the use of Dawson, Harvey, and Henderson in the classroom. I also hope that readers wonder whether my analysis of Dawson, Harvey, and Henderson can be extended to other casebooks. Because both of these questions are related to my goals ofchallenging the influence of gender in reading and writing casebooks, I address these questions in this conclusion. Focusing on these questions also allows me to re-examine the objec- tives and methodology of the preceding sections and to discuss the implications of this Essay for further efforts to loosen the constraints of gender on our lives.

Because other casebooks, as I have implied, could be subject to the analysis I have applied to Dawson, Harvey, and Henderson in this Essay, I think it would be unrealistic and unfair to advocate aban- doning this casebook on the grounds of my discussion. I would like instructors and casebook editors to undertake major efforts to mod- ify the importance gender plays in classroom materials, but I recog- nize that for many reasons most of us do not want to junk the bulk of the traditional materials we presently use in teaching. The ques-

tion most of us face, therefore, is what changes my re-reading of Dawson, Harvey, and Henderson suggests we make in our classroom use of this or similar books.

My aim in the preceding sections has been to indicate the power and authority that law casebooks have over their readers. At the same time, I have suggested that because of the wide variety of atti- tudes and ideas that casebook readers have about gender, readers interpret casebook material (and casebooks affect readers) differ- ently and with varying intensity. The dialectical nature of the rela- tionship between the casebook and readers is replicated in the relationship between students and an instructor who seeks to intro- duce a feminist casebook analysis into the classroom. Let me illus- trate the student aspect of this relationship by considering a class discussion concerning the significance of Shirley MacLaine's photograph.2 18

218.See supra notes 184-185 and accompanying text. While the photograph could be un- derstood as an overtly sexist part ofDawson, Harvey, and Henderson, I believe that class discus- sions of the more subtle, gender-related aspects of the casebook, such as the stereotypical roles of the casebook parties, the silence regarding women judges, or the predominance of masculine pronouns in the opinions and in the editorial material, would receive the same mixed reception I project here for the discussion of material which some readers will construe as overtly sexist. There are, of course, a number of other strategies this Essay suggests that

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Students will come to class with different attitudes toward this

photograph. Some readers, such as The Feminist, the Woman-Cen- tered Reader, or the Reader with a Chip on her Shoulder, may be offended by the editors' use of a picture they think is denigrating to Shirley MacLaine in her role as a woman plaintiff. Other readers, who may also be Feminists and female Readers with Chips on their Shoulders, may be elated by the bravura of MacLaine's photograph. Here's a woman, they may think, who can use her sexual power ef- fectively. Readers who are Undressed for Success may come to class feeling concerned that being a woman, or having "feminine" char- acteristics, is a disadvantage professionally. They are likely to be- lieve that Dawson, Harvey, and Henderson exploited MacLaine by using her photograph in their book. Still other readers, like male Readers with Chips on their Shoulders, may be pleased to think the editors share their views that women are primarily sex objects. Be- cause students vary so dramatically in their views about gender, an instructor's discussion of the photograph may validate the attitudes of one group of students toward gender at the same time that the discussion creates pedagogical problems for others. Consider the impact of two interpretations an instructor might put forward re- garding the MacLaine illustration.

If an instructor believes that the editors' use of MacLaine's photo- graph is degrading to women, she may seek to mitigate the effect of the photography by criticizing the editors in class for including the illustration in their book. Her criticism would probably offend read- ers who believe the photograph communicates a positive image about women, and it might embarrass other readers who resent hav- ing their need for reassurance that sexism is unacceptable recog- nized. There is also a danger that the anger of Readers with Chips on their Shoulders might erupt during such a discussion and inter- fere with the instructor's control over the assuring, defusing message she seeks to convey.

The instructor would fare no better if she used the photograph, as I did in the Parker case analysis, to discuss the effect of gender on one's interpretation of the Parker decision. Many students, like the Individualist or the Civil Libertarian readers, do not acknowledge the power of gender over their ideas. They would come to class

instructors could utilize in class in order to challenge the gendered stance of Dawson, Harvey, andHenderson. In addition to discussing some of the observations presented here, instructors could also add material to the casebook that would challenge the links the casebook makes between gender and the law. By adding material to the course of special interest to women, instructors could challenge the restricted idea that contracts courses are limited to tradition. ally "masculine" interests.

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without any position at all about MacLaine's photograph. Failing to mention the problems of gender would leave the arrogance or the isolation of these readers undisturbed, permitting them either to embrace the gendered messages of the photograph or to remain ig- norant of other readers' distress. However, a serious discussion of the photograph might cause these students to see their instructor as a zealot; the discussion might reduce their confidence in her as a reliable teacher. "She has no sense of proportion," they might say. "She gets off the track." Thus, the different attitudes students have regarding gender will affect the treatment a feminist analysis of casebook materials receives in class.

Ideas relating to gender will also affect the way in which instruc- tors determine how a feminist analysis should affect their treatment of Dawson, Harvey, andHenderson in class. In my contracts course, for example, I am willing to introduce those parts of this Essay that re- late to the relationship between gender and how students under- stand cases, but I seem reluctant to discuss how the casebook affects students' views of themselves and of gender roles.2 1 9 I thus subordinate the deep pleasure and appreciation many students would derive from having their intuitive responses to the casebook legitimated to my concerns about the negative reactions of other students. I succumb to the position I have disputed in this Essay that doctrinal instruction can be isolated from students' views of themselves.

My reluctance to fully pursue this Essay's ideas in my classroom is a gendered reaction. Like many women law teachers, I am suspi- cious of the authority and power that students are accustomed to extending to instructors. 22 0 Because students expect me and I ex- pect myself to be more conciliatory, more deferential, and more un- derstanding than male teachers, I am reluctant to exploit my power in the classroom by introducing some of this controversial material into class.

I am also reluctant to completely incorporate a feminist casebook

219.For example, my class discussions of Parker v. Twentieth Century-Fox Film Corp., 3 Cal.3d 176,474 P.2d 689, 89 Cal. Rptr. 737 (1970), excerpted inJ. DAwsoN, supra note 1, at 46; Allied Van Lines, Inc. v. Bratton, 351 So.2d 344 (Fla. 1977), excerptedinJ. DAwsoN, supra note 1, at 448; Crenshaw v. Williams, 191 Ky. 559, 231 S.W. 45 (1921), excerpted inJ. DAwsoN, supra note 1, at 25; and Fitzpatrick v. Michael, 177 Md. 248, 9 A.2d 639 (1939), excerptedinJ. DAw- soN, supra note 1, at 128, are influenced by this essay, while my discussions of Wood v. Lucy, Lady Duff-Gordon, 222 N.Y. 88, 118 N.E. 214 (1917), excerpted in J. DAwsoN, supra note 1, at 231, andJackson v. Seymour, 193 Va. 735, 71 S.E.2d 181 (1952), excerpted inj. DAwsoN, supra note 1, at 170, tend not to be.

220.See Pickard, Experience as Teacher. Discoveringthe Politics ofLaw Teaching, 33 U. OF To- rocro LJ. 279 (1983) (criticizing effect of such power and authority on students). See also D.

KENNEDY, LEGAL EDUCATION AND THE REPRODUCTION OF HIERARCHY 58-65 (1983).

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analysis in class because the analysis is not only radically different from traditional classroom discussion but also closely related to my identity as a woman. Having been educated exclusively by men in the law schools I attended and having taught on predominantly male faculties, I link traditional classroom discussion with men. In order to pursue feminist material in class, I must struggle against the customary deference I have been socialized to extend to men. Challenging the restrictions my own ideas about gender impose on me is an effort I cannot always make.

Because one's own attitudes about gender affect what one be- lieves is acceptable in the classroom and because one's views of what is acceptable in the classroom affect one's attitudes toward gender, any decisions regarding the classroom implications of this Essay must be personal and contextualized, as my own decision has been. Faithfully replicating the analysis set forth in this Essay is unlikely to be a useful way for anyone, even me, to challenge the influence of gender in class discussions of Dawson, Harvey, and Henderson. The variety of student-as well as instructor- attitudes needs to be con- sidered. I hope, however, that this Essay has convincingly demon- strated that current classroom conduct is already molding students' views about themselves as men and women and about the relation- ship between gender and the law. Although the question of how one's treatment of Dawson, Harvey, and Henderson should change be- cause of my re-reading cannot be given a uniform answer, there is no way to avoid the issue of gender in the classroom. Each of us must address this issue, but for him or herself.

My discussion of the classroom implications of this Essay suggests that I am unlikely to claim that one can simply "apply" the analysis in this Essay to other casebooks. Indeed, I want to caution readers not to freeze this analysis into a rigid, prescriptive, analytical -formula for eradicating gender. At the same time, however, I be- lieve that my Essay provides an approach for evaluating other casebooks. By using editors' case selections, editorial comments, and silences, one can examine their treatment of the work women do. One can analyze the way they permit women to be characterized in their casebooks, and the sensitivity they exhibit to information and legal issues of special interest to women. One can evaluate edi- torial use of language and the selection and presentation of authors, seeking in both these instances to determine whether the editors have granted recognition to the particularlity of women. By analyz- ing the organization of cases involving women, one can determine whether and how these cases are used to convey gendered messages about legal doctrine. In short, one can examine the gendered char-

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sciousnesses, but other aspects should be transformed in order to achieve the same objective.

A feminist analysis of Dawson, Harvey, and Henderson can be suc- cessful not by being "applied" to other legal writing but by generat- ing other re-readings. Although we need to use gender-related ideas in order to challenge gender constraints, we will only be able to accomplish that objective by constantly re-examining the ideas we are using. Ultimately, in order to challenge gender constraints ef- fectively, our use of gender-related ideas must change with our shifting cultural context and the changes within ourselves. Only by continually re-thinking who we are and why we are making the choices we make can we free ourselves from the belief that our selves are constructed by our sexual identities.